exhibit 10.5
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of April 1, 2001, by and between Brand
Services, Inc., a Delaware Corporation (the "Company") and Xxxxx X. Xxxxx
("Executive").
WHEREAS, the Company employs Executive as a Regional Operations Vice
President (ROVP); and
WHEREAS, the Company and Executive desire to continue the Executive's
employment by the Company and to enter into an agreement (the "Agreement")
embodying certain terms of Executive's future employment;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the parties
agree as follows:
1. AGREEMENT TERM. Executive's continued employment by the Company
shall commence on April 1, 2001, and shall, unless extended as set forth below,
terminate on March 31, 2003 (the "Expiration Date"). Executive's employment
shall be automatically extended on a year to year basis following the Expiration
Date, unless a written notice to terminate is given by the Company to Executive
not less than thirty (30), nor more than sixty (60), days prior to the scheduled
expiration date. Upon the occurrence of a change of control of more than fifty
percent (50%) of the common stock of the Company or its parent corporation DLJ
Brand Holdings, Inc., a Delaware corporation (other than through a sale into the
public markets) (hereinafter referred to as a "Change of Control"), the
Expiration Date shall be automatically extended through and including the second
anniversary of the effective date as of which such Change of Control is
consummated, and thereafter may be further extended on a year to year basis in
the manner set forth in the preceding sentence. The period commencing as of
April 1, 2001, and ending on the Expiration Date, as the same may be extended
from time to time hereunder, is hereinafter referred to as the "Employment
Term". Notwithstanding the foregoing, the Employment Term shall terminate in any
and all events upon the termination of Executive's employment hereunder as
hereinafter provided.
2. POSITIONS. During the Employment Term, executive shall serve as
Regional Operations Vice President (ROVP). Executive shall report directly to
the President and Chief Executive Officer of the Company (the "CEO") and shall
have such duties and authority commensurate with such position as shall be
determined from time to time by the CEO. Executive shall devote substantially
all of his business time and best efforts to the performance of his duties
hereunder and shall not engage in any other business, profession or occupation
for compensation or otherwise.
3. BASE SALARY. During the Employment Term, the Company shall pay
Executive a base salary (the "Base Salary") at the annual rate of not less than
$152,999, payable in arrears, in accordance with the usual payment practices of
the Company. Executive's Base Salary shall be subject to periodic review by the
CEO and the Compensation Committee of the Board of Directors, not less
frequently than annually, beginning January 1, 2002.
4. BONUS.
(a) With respect to each fiscal year in the Employment Term,
Executive shall be eligible for a bonus of up to 120% of his Base Salary (the
"Annual Bonus") to be determined
annually in accordance with the Company's annual bonus plan, as earned through
the achievement of certain profitability and performance objectives which are
annually developed by the CEO and as reviewed and approved by the Compensation
Committee of the Board of Directors (the "Bonus Plan").
(b) Any Bonus payable hereunder shall be paid at or about the
same time bonuses are paid to the Company's other senior executives and, in the
case of the Annual Bonus, in accordance with the terms of the Bonus Plan.
5. EMPLOYEE BENEFITS. During the Employment Term, Executive shall be
entitled to participate on a basis no less favorable than other senior
executives of the Company in all retirement, welfare benefit, incentive
compensation, perquisite and other plans and arrangements of the Company
applicable to senior executives of the Company, as in effect from time to time.
6. BUSINESS EXPENSES. During the Employment Term, the Company shall
reimburse such of Executive's travel, entertainment and other business expenses
as are reasonably and necessarily incurred by Executive during the Employment
Term in the performance of his duties hereunder, in accordance with the
Company's policies as in effect from time to time.
7. TERMINATION. The Employment Term may be terminated prior to its
scheduled expiration for any of the reasons set forth in this Section 7 or
Section 8. Upon a termination or expiration of the Employment Term, Executive
shall be entitled to the payments, if any, described in this Section 7 or
Section 8, whichever is applicable.
(a) FOR CAUSE BY THE COMPANY, OR BY EXECUTIVE FOR ANY REASON.
The Employment Term may be terminated prior to its scheduled expiration by the
Company for Cause (as defined below). In addition, the Employment Term may be
terminated prior to its scheduled expiration by Executive for any reason. If the
Employment Term is terminated by the Company for Cause prior to its scheduled
expiration, or by Executive for any reason prior to its scheduled expiration,
then Executive shall be entitled to receive his Base Salary through the date of
termination, any Bonus that has been earned in accordance with Section 4 for a
prior fiscal year but not yet paid and any unreimbursed business expenses,
payable promptly following the later of the date of such termination and the
date on which the appropriate documentation is provided. All other benefits
following termination of the Employment Term pursuant to this Section 7(a) shall
be determined in accordance with the plans, policies and practices of the
Company.
(b) DEATH OR DISABILITY. The Employment Term shall terminate
prior to its scheduled expiration upon Executive's death or, at the Company's
election, if Executive incurs a Disability (as hereinafter defined). If the
Employment Term is terminated prior to its scheduled expiration by reason of
Executive's death or, at the Company's election, if Executive incurs a
Disability, Executive's estate or, in the case of Executive's Disability,
Executive (or such other person duly appointed by a court of competent
jurisdiction to manage Executive's affairs) shall receive (i) the amounts
described under Section 7(a), and subject to Executive's continued compliance
with the covenants set forth in Section 9 in the event of Executive's
Disability, (ii) continued payment of Base Salary through the first anniversary
of the date of death or the effective date as of which Executive incurs a
Disability.
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All other benefits following termination of the Employment
Term pursuant to this Section 7(b) shall be determined in accordance with the
plans, policies and practices of the Company.
(c) BY THE COMPANY WITHOUT CAUSE. The Employment Term may be
terminated prior to its scheduled expiration by the Company without Cause. If
the Employment Term is terminated prior to its scheduled expiration by the
Company without Cause, then subject to Executive's continued compliance with the
covenants set forth in Section 9, Executive shall receive (i) the amounts
described under Section 7(a); (ii) continued payment of Base Salary through the
last day of the 24th month following the date of termination (the "Severance
Period"); (iii) continued coverage under the Company's welfare benefit
arrangements as in effect from time to time through the earlier of (A) the end
of the Severance Period, and (B) such time as Executive is eligible to receive
comparable welfare benefits from a subsequent employer. At the Executive's sole
discretion, a lump sum amount equal to 12 months of annual Base Salary may be
paid to the Executive commencing with the first day of the 13th month of the
Severance Period in lieu of monthly payments remaining under the Severance
Period. All other benefits following termination of the Employment Term pursuant
to this Section 7(c) shall be determined in accordance with the plans, policies
and practices of the Company.
(d) UPON SCHEDULED EXPIRATION. The Employment Term shall
expire on the Expiration Date (after giving effect to any extensions set forth
in Section 1 hereof). In the event the Employment Term expires, then Executive
shall only be entitled to receive the amounts described in Section 7(a) above.
(e) DEFINITIONS. For purposes of this Section 7, the following
terms shall have the following meanings:
(i) "Cause" shall mean:
(A) Executive's willful and continued
failure substantially to perform his duties under the
Agreement (other than as a result of total or partial
incapacity due to physical or mental illness);
(B) An act or acts on Executive's part
constituting a felony under the laws of the United
States or any other state thereof or any other
jurisdiction in which the Company conducts business;
(C) Executive's being under the influence of
illegal drugs or alcohol while performing his duties
hereunder;
(D) Any other act or omission which is
materially injurious to the financial condition or
business reputation of the Company or any of its
affiliates; or
(E) Executive's breach of the provisions of
Section 10.
For purposes of this definition, no act or failure to act
shall be deemed "willful" unless effected by Executive not in good
faith and without a reasonable belief that such action or failure to
act was in or not opposed to the Company's best interests.
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(ii) "Disability" shall mean Executive's inability,
as a result of physical or mental illness, to perform the duties of the
position(s) specified in Section 2 for a period of 90 consecutive days or for an
aggregate of 90 days in any twelve consecutive month period. Any question as to
the existence of the Disability of Executive as to which Executive and the
Company cannot agree shall be determined in writing by a qualified independent
physician selected by the Company and reasonably acceptable to Executive. The
determination of Disability made in writing to the Company and Executive shall
be final and conclusive for all purposes of the Agreement.
(f) NOTICE OF TERMINATION. Any purported termination of the
Employment Term prior to its scheduled expiration by the Company or by Executive
shall be communicated by written notice of termination to the other party
hereto. For purposes of this Agreement, a "Notice of Termination" shall mean a
notice which shall indicate the specific termination provision in this Agreement
relied upon and shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination under the provision so indicated.
(g) RELEASE. Any payments by the Company to Executive under
this Section 7 or Section 8 below or in connection with any dispute arising
under or in connection with this Agreement or relating to Executive's employment
with the Company (including payments pursuant to arbitration as provided for in
Section 11(k) hereof) will be contingent upon the execution by Executive of a
release of any claims Executive may have against the Company, its affiliates or
any successor to the Company, such release to be in a form satisfactory to the
Company in its sole discretion.
8. CHANGE OF TITLE, JOB RESPONSIBILITIES, BASE SALARY AND/OR BONUS
OPPORTUNITY. Notwithstanding the provisions of Section 7(a) to the contrary,
from and after the occurrence of a Change of Control with respect to the
Company, if Executive's title and/or job responsibilities are changed from those
described in Section 2 of this Agreement, or if Executive's base salary is
reduced or if Executive's opportunity to earn an annual bonus up to 120% of base
salary as set forth in Section 4 is eliminated, Executive shall have the option
to terminate his employment with the Company and, subject to Executive's
continued compliance with the covenants set forth in Section 9, to receive the
amounts and benefits set forth in Section 7(c) of this Agreement, at the time
and for the duration more particularly set forth therein.
9. NON-COMPETITION/CONFIDENTIAL INFORMATION.
(a) Executive acknowledges and recognizes the highly
competitive nature of the businesses of the Company and its affiliates and
accordingly agrees that during the Employment Term and through the later of the
Severance Period or twelve (12) months following the date of termination of
employment:
(i) Executive will not directly or indirectly engage
in any business which is in competition with any line of business
conducted by the Company or its affiliates (including without
limitation by performing or soliciting the performance of services for
any person who is a customer or client of the Company or any of its
affiliates) whether such engagement is as an officer, director,
proprietor, employee, partner, investor (other than as holder of less
than 1% of the outstanding capital stock of a publicly traded
corporation), consultant, advisor, agent, sales representative or other
participant, in any geographic area
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in which the Company or any of its affiliates conducted any such
competing line of business.
(ii) Executive will not directly or indirectly assist
others in engaging in any of the activities in which Executive is
prohibited from engaging in by clause (i) above.
(b) Executive will not directly or indirectly induce any
employee of the Company or any of its affiliates to engage in any activity in
which Executive is prohibited to engage by paragraph (a) above or to terminate
his employment with the Company or any of its affiliates, and will not directly
or indirectly employ or offer employment to any person who was employed by the
Company or any of its affiliates unless such person shall have ceased to be
employed by the Company or any of its affiliates for a period of at least 12
months.
(c) Executive will not at any time (whether during or after
his employment with the Company) disclose or use for his own benefit or purposes
or the benefit or purposes of any other person, firm, partnership, joint
venture, association, corporation or other business organization, entity or
enterprise other than the Company and any of its subsidiaries or affiliates, any
trade secrets, information, data, or other confidential information relating to
customers, development programs, costs, marketing, trading, investment, sales
activities, promotion, credit and financial data, manufacturing processes,
financing methods, plans, or the business and affairs of the Company generally
or of any subsidiary or affiliate of the Company, provided that the foregoing
shall not apply to information which is not unique to the Company or which is
generally known to the industry or the public other than as a result of
Executive's breach of this covenant. Executive agrees that upon termination of
his employment with the Company for any reason, he will return to the Company
immediately all memoranda, books, papers, plans, information, letters and other
data, and all copies thereof or therefrom, in any way relating to the business
of the Company and its affiliates, except that he may retain personal notes,
notebooks and diaries. Executive further agrees that he will not retain or use
for his account at any time any trade names, trademark or other proprietary
business designation used or owned in connection with the business of the
Company or its affiliates.
10. SPECIFIC PERFORMANCE AND OTHER REMEDIES. Executive acknowledges and
agrees that the Company has no adequate remedy at law for a breach or threatened
breach of any of the provisions of Section 9 and, in recognition of this fact,
Executive agrees that, in the event of such a breach or threatened breach, in
addition to any remedies at law, the Company, without posting any bond and
without notice to the Executive, shall be entitled to obtain equitable relief in
the form of specific performance, temporary restraining order, temporary or
permanent injunction or any other equitable remedy which may then be available.
Nothing in this Agreement shall be construed as prohibiting the Company from
pursuing any other remedies at law or in equity that it may have or any other
rights that it may have under any other agreement.
11. MISCELLANEOUS.
(a) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Missouri without reference
to principles of conflict of laws.
(b) ENTIRE AGREEMENT/AMENDMENTS. This Agreement contains the
entire understanding of the parties with respect to the subject matter hereof
and supersedes any prior agreements between the Company and Executive. There are
no restrictions, agreements,
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promises, warranties, covenants or undertakings between the parties with respect
to the subject matter herein other than those expressly set forth herein and
therein. No provision in this Agreement may be amended unless such amendment is
agreed to in writing.
(c) NO WAIVER. The failure of a party to insist upon strict
adherence to any term of this Agreement on any occasion shall not be considered
a waiver of such party's rights or deprive such party of the right thereafter to
insist upon strict adherence to that term or any other term of this Agreement.
No waiver by either party of any breach by the other party of any condition or
provision contained in this Agreement to be performed by such other party shall
be deemed a waiver of a similar or dissimilar condition or provision at the same
or any prior or subsequent time. Any waiver must be in writing and signed by the
Executive or the Company, as the case may be.
(d) SEVERABILITY. It is expressly understood and agreed that
although Executive and the Company consider the restrictions contained in
Section 9 to be reasonable, if a final judicial determination is made by a court
of competent jurisdiction that the time or territory restriction in Section 9 or
any other restriction contained in Section 9 is an unenforceable restriction
against Executive, such provision shall not be rendered void but shall be deemed
amended to apply to such maximum time and territory, if applicable, or otherwise
to such maximum extent as such court may judicially determine or indicate to be
enforceable. Alternatively, if any court of competent jurisdiction finds that
any restriction contained in Section 9 is unenforceable, and such restriction
cannot be amended so as to make it enforceable, such finding shall not affect
the enforceability of any of the other restrictions contained herein. In the
event that any one or more of the other provisions of this Agreement shall be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions of this Agreement shall not be
affected thereby.
(e) ASSIGNMENT. This Agreement shall not be assignable by
either party without the consent of the other party.
(f) SUCCESSORS. This Agreement shall inure to the benefit of
and be binding upon the personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees of the
parties hereto. The Executive shall be entitled to select (and change, to the
extent permitted under any applicable law) a beneficiary or beneficiaries to
receive any compensation or benefit payable hereunder following the Executive's
death by giving the Company written notice thereof. In the event of the
Executive's death or a judicial determination of his incompetence, reference in
this Agreement to the Executive shall be deemed, where appropriate, to refer to
his beneficiary, estate or other legal representative.
(g) COMMUNICATIONS. For the purpose of this Agreement, notices
and all other communications provided for in this Agreement shall be in writing
and shall be deemed to have been duly given when faxed or delivered or two
business days after being mailed by United States registered or certified mail,
return receipt requested, postage prepaid, addressed (i) to the Executive at his
address then appearing in the personnel records of the Company and; (ii) to the
Company at the Company's then current headquarters; or (iii) to such other
address as either party may have furnished to the other in writing in accordance
herewith, with such notice of change of address being effective only upon
receipt.
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(h) WITHHOLDING TAXES. The Company may withhold from any and
all amounts payable under this Agreement such Federal, state, local and any
other applicable taxes as may be required to be withheld pursuant to any
applicable law or regulation.
(i) SURVIVORSHIP. The respective rights and obligations of the
parties hereunder shall survive any termination of Executive's employment to the
extent necessary to assure the agreed preservation of such rights and
obligations.
(j) REPRESENTATIONS. Each party represents and warrants to the
other that he or it is fully authorized and empowered to enter into this
Agreement and that the performance of his or its obligations under this
Agreement will not violate any agreement between him or it and any other person
or entity.
(k) ARBITRATION. The parties agree that all disputes arising
under or in connection with this Agreement, and any and all claims by the
Executive relating to his employment with the Company, including any claims of
discrimination arising under Title VII of the Civil Rights Act of 1964, as
amended, the Age Discrimination in Employment Act, the Americans with
Disabilities Act or any similar federal, state or local law will be submitted to
arbitration in the County and State of New York to the American Arbitration
Association ("AAA") under its rules then prevailing for the type of claim in
issue. The parties each hereby specifically submit to the personal jurisdiction
of any federal or state court located in the County of St. Louis and the State
of Missouri for any such action and further agree that service of process may be
made within or without the State of Missouri by giving notice in the manner
provided herein.
In any action or proceeding relating to this Agreement, the
parties agree that no damages other than compensatory damages shall be sought or
claimed by either party and each party waives any claim, right or entitlement to
punitive, exemplary, statutory or consequential damages, or any other damages,
and each relevant arbitration panel is specifically divested of any power to
award any damages in the nature of punitive, exemplary, statutory or
consequential damages, or any other damages of any kind or nature in excess of
compensatory damages.
(l) FEES AND EXPENSES. In the event of a dispute by the
Company or Executive as to the validity or enforceability of, or liability
under, any provision of this Agreement and with respect to any claims arising in
connection with Executive's employment with the Company, each party shall pay
its own legal fees and expenses incurred in connection with such dispute or
claim; provided, however, and notwithstanding the foregoing, in the event of a
breach of this Agreement by the Company at any time after a Change of Control,
whether or not litigation is commenced, then the Company shall pay to Executive,
in addition to any damages incurred by Executive, the costs and expenses
incurred by Executive in connection with any such breach (including, without
limitation, all court costs and reasonable attorneys' fees and costs).
(m) COUNTERPARTS. This Agreement may be signed in
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
(n) HEADINGS. The headings of the sections contained in
this Agreement are for convenience only and shall not be deemed to control or
affect the meaning or construction of any provision of this Agreement. Any
reference to the Executive in the masculine gender herein is for
7
convenience and is not intended to express any preference by the Company for
executives of any gender.
8
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
___________________________________________
Xxxxx X. Xxxxx
Executive
BRAND SERVICES, INC.
By: _______________________________________
Name: Xxxxx Xxxxx
Title: Chairman of the Board of Directors
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EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of April 1, 2001, by and between Brand
Services, Inc., a Delaware Corporation (the "Company") and Xxxxx X. Xxxxxxxx
("Executive").
WHEREAS, the Company employs Executive as a Regional Operations Vice
President (ROVP); and
WHEREAS, the Company and Executive desire to continue the Executive's
employment by the Company and to enter into an agreement (the "Agreement")
embodying certain terms of Executive's future employment;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the parties
agree as follows:
1. AGREEMENT TERM. Executive's continued employment by the Company
shall commence on April 1, 2001, and shall, unless extended as set forth below,
terminate on March 31, 2003 (the "Expiration Date"). Executive's employment
shall be automatically extended on a year to year basis following the Expiration
Date, unless a written notice to terminate is given by the Company to Executive
not less than thirty (30), nor more than sixty (60), days prior to the scheduled
expiration date. Upon the occurrence of a change of control of more than fifty
percent (50%) of the common stock of the Company or its parent corporation DLJ
Brand Holdings, Inc., a Delaware corporation (other than through a sale into the
public markets) (hereinafter referred to as a "Change of Control"), the
Expiration Date shall be automatically extended through and including the second
anniversary of the effective date as of which such Change of Control is
consummated, and thereafter may be further extended on a year to year basis in
the manner set forth in the preceding sentence. The period commencing as of
April 1, 2001, and ending on the Expiration Date, as the same may be extended
from time to time hereunder, is hereinafter referred to as the "Employment
Term". Notwithstanding the foregoing, the Employment Term shall terminate in any
and all events upon the termination of Executive's employment hereunder as
hereinafter provided.
2. POSITIONS. During the Employment Term, executive shall serve as
Regional Operations Vice President (ROVP). Executive shall report directly to
the President and Chief Executive Officer of the Company (the "CEO") and shall
have such duties and authority commensurate with such position as shall be
determined from time to time by the CEO. Executive shall devote substantially
all of his business time and best efforts to the performance of his duties
hereunder and shall not engage in any other business, profession or occupation
for compensation or otherwise.
3. BASE SALARY. During the Employment Term, the Company shall pay
Executive a base salary (the "Base Salary") at the annual rate of not less than
$161,288, payable in arrears, in accordance with the usual payment practices of
the Company. Executive's Base Salary shall be subject to periodic review by the
CEO and the Compensation Committee of the Board of Directors, not less
frequently than annually, beginning January 1, 2002.
4. BONUS.
(a) With respect to each fiscal year in the Employment Term,
Executive shall be eligible for a bonus of up to 120% of his Base Salary (the
"Annual Bonus") to be determined annually in accordance with the Company's
annual bonus plan, as earned through the achievement of certain profitability
and performance objectives which are annually developed by the CEO and
as reviewed and approved by the Compensation Committee of the Board of Directors
(the "Bonus Plan").
(b) Any Bonus payable hereunder shall be paid at or about the
same time bonuses are paid to the Company's other senior executives and, in the
case of the Annual Bonus, in accordance with the terms of the Bonus Plan.
5. EMPLOYEE BENEFITS. During the Employment Term, Executive shall be
entitled to participate on a basis no less favorable than other senior
executives of the Company in all retirement, welfare benefit, incentive
compensation, perquisite and other plans and arrangements of the Company
applicable to senior executives of the Company, as in effect from time to time.
6. BUSINESS EXPENSES. During the Employment Term, the Company shall
reimburse such of Executive's travel, entertainment and other business expenses
as are reasonably and necessarily incurred by Executive during the Employment
Term in the performance of his duties hereunder, in accordance with the
Company's policies as in effect from time to time.
7. TERMINATION. The Employment Term may be terminated prior to its
scheduled expiration for any of the reasons set forth in this Section 7 or
Section 8. Upon a termination or expiration of the Employment Term, Executive
shall be entitled to the payments, if any, described in this Section 7 or
Section 8, whichever is applicable.
(a) FOR CAUSE BY THE COMPANY, OR BY EXECUTIVE FOR ANY REASON.
The Employment Term may be terminated prior to its scheduled expiration by the
Company for Cause (as defined below). In addition, the Employment Term may be
terminated prior to its scheduled expiration by Executive for any reason. If the
Employment Term is terminated by the Company for Cause prior to its scheduled
expiration, or by Executive for any reason prior to its scheduled expiration,
then Executive shall be entitled to receive his Base Salary through the date of
termination, any Bonus that has been earned in accordance with Section 4 for a
prior fiscal year but not yet paid and any unreimbursed business expenses,
payable promptly following the later of the date of such termination and the
date on which the appropriate documentation is provided. All other benefits
following termination of the Employment Term pursuant to this Section 7(a) shall
be determined in accordance with the plans, policies and practices of the
Company.
(b) DEATH OR DISABILITY. The Employment Term shall terminate
prior to its scheduled expiration upon Executive's death or, at the Company's
election, if Executive incurs a Disability (as hereinafter defined). If the
Employment Term is terminated prior to its scheduled expiration by reason of
Executive's death or, at the Company's election, if Executive incurs a
Disability, Executive's estate or, in the case of Executive's Disability,
Executive (or such other person duly appointed by a court of competent
jurisdiction to manage Executive's affairs) shall receive (i) the amounts
described under Section 7(a), and subject to Executive's continued compliance
with the covenants set forth in Section 9 in the event of Executive's
Disability, (ii) continued payment of Base Salary through the first anniversary
of the date of death or the effective date as of which Executive incurs a
Disability.
All other benefits following termination of the Employment
Term pursuant to this Section 7(b) shall be determined in accordance with the
plans, policies and practices of the Company.
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(c) BY THE COMPANY WITHOUT CAUSE. The Employment Term may be
terminated prior to its scheduled expiration by the Company without Cause. If
the Employment Term is terminated prior to its scheduled expiration by the
Company without Cause, then subject to Executive's continued compliance with the
covenants set forth in Section 9, Executive shall receive (i) the amounts
described under Section 7(a); (ii) continued payment of Base Salary through the
last day of the 24th month following the date of termination (the "Severance
Period"); (iii) continued coverage under the Company's welfare benefit
arrangements as in effect from time to time through the earlier of (A) the end
of the Severance Period, and (B) such time as Executive is eligible to receive
comparable welfare benefits from a subsequent employer. At the Executive's sole
discretion, a lump sum amount equal to 12 months of annual Base Salary may be
paid to the Executive commencing with the first day of the 13th month of the
Severance Period in lieu of monthly payments remaining under the Severance
Period. All other benefits following termination of the Employment Term pursuant
to this Section 7(c) shall be determined in accordance with the plans, policies
and practices of the Company.
(d) UPON SCHEDULED EXPIRATION. The Employment Term shall
expire on the Expiration Date (after giving effect to any extensions set forth
in Section 1 hereof). In the event the Employment Term expires, then Executive
shall only be entitled to receive the amounts described in Section 7(a) above.
(e) DEFINITIONS. For purposes of this Section 7, the following
terms shall have the following meanings:
(i) "Cause" shall mean:
(A) Executive's willful and continued
failure substantially to perform his duties under the
Agreement (other than as a result of total or partial
incapacity due to physical or mental illness);
(B) An act or acts on Executive's part
constituting a felony under the laws of the United
States or any other state thereof or any other
jurisdiction in which the Company conducts business;
(C) Executive's being under the influence of
illegal drugs or alcohol while performing his duties
hereunder;
(D) Any other act or omission which is
materially injurious to the financial condition or
business reputation of the Company or any of its
affiliates; or
(E) Executive's breach of the provisions of
Section 10.
For purposes of this definition, no act or failure to act
shall be deemed "willful" unless effected by Executive not in good
faith and without a reasonable belief that such action or failure to
act was in or not opposed to the Company's best interests.
(ii) "Disability" shall mean Executive's
inability, as a result of physical or mental illness, to perform the duties of
the position(s) specified in Section 2 for a period of 90 consecutive days or
for an aggregate of 90 days in any twelve consecutive month period. Any
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question as to the existence of the Disability of Executive as to which
Executive and the Company cannot agree shall be determined in writing by a
qualified independent physician selected by the Company and reasonably
acceptable to Executive. The determination of Disability made in writing to the
Company and Executive shall be final and conclusive for all purposes of the
Agreement.
(f) NOTICE OF TERMINATION. Any purported termination of the
Employment Term prior to its scheduled expiration by the Company or by Executive
shall be communicated by written notice of termination to the other party
hereto. For purposes of this Agreement, a "Notice of Termination" shall mean a
notice which shall indicate the specific termination provision in this Agreement
relied upon and shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination under the provision so indicated.
(g) RELEASE. Any payments by the Company to Executive under
this Section 7 or Section 8 below or in connection with any dispute arising
under or in connection with this Agreement or relating to Executive's employment
with the Company (including payments pursuant to arbitration as provided for in
Section 11(k) hereof) will be contingent upon the execution by Executive of a
release of any claims Executive may have against the Company, its affiliates or
any successor to the Company, such release to be in a form satisfactory to the
Company in its sole discretion.
8. CHANGE OF TITLE, JOB RESPONSIBILITIES, BASE SALARY AND/OR BONUS
OPPORTUNITY. Notwithstanding the provisions of Section 7(a) to the contrary,
from and after the occurrence of a Change of Control with respect to the
Company, if Executive's title and/or job responsibilities are changed from those
described in Section 2 of this Agreement, or if Executive's base salary is
reduced or if Executive's opportunity to earn an annual bonus up to 120% of base
salary as set forth in Section 4 is eliminated, Executive shall have the option
to terminate his employment with the Company and, subject to Executive's
continued compliance with the covenants set forth in Section 9, to receive the
amounts and benefits set forth in Section 7(c) of this Agreement, at the time
and for the duration more particularly set forth therein.
9. NON-COMPETITION/CONFIDENTIAL INFORMATION.
(a) Executive acknowledges and recognizes the highly
competitive nature of the businesses of the Company and its affiliates and
accordingly agrees that during the Employment Term and through the later of the
Severance Period or twelve (12) months following the date of termination of
employment:
(i) Executive will not directly or indirectly engage
in any business which is in competition with any line of business
conducted by the Company or its affiliates (including without
limitation by performing or soliciting the performance of services for
any person who is a customer or client of the Company or any of its
affiliates) whether such engagement is as an officer, director,
proprietor, employee, partner, investor (other than as holder of less
than 1% of the outstanding capital stock of a publicly traded
corporation), consultant, advisor, agent, sales representative or other
participant, in any geographic area in which the Company or any of its
affiliates conducted any such competing line of business.
(ii) Executive will not directly or indirectly assist
others in engaging in any of the activities in which Executive is
prohibited from engaging in by clause (i) above.
4
(b) Executive will not directly or indirectly induce any
employee of the Company or any of its affiliates to engage in any activity in
which Executive is prohibited to engage by paragraph (a) above or to terminate
his employment with the Company or any of its affiliates, and will not directly
or indirectly employ or offer employment to any person who was employed by the
Company or any of its affiliates unless such person shall have ceased to be
employed by the Company or any of its affiliates for a period of at least 12
months.
(c) Executive will not at any time (whether during or after
his employment with the Company) disclose or use for his own benefit or purposes
or the benefit or purposes of any other person, firm, partnership, joint
venture, association, corporation or other business organization, entity or
enterprise other than the Company and any of its subsidiaries or affiliates, any
trade secrets, information, data, or other confidential information relating to
customers, development programs, costs, marketing, trading, investment, sales
activities, promotion, credit and financial data, manufacturing processes,
financing methods, plans, or the business and affairs of the Company generally
or of any subsidiary or affiliate of the Company, provided that the foregoing
shall not apply to information which is not unique to the Company or which is
generally known to the industry or the public other than as a result of
Executive's breach of this covenant. Executive agrees that upon termination of
his employment with the Company for any reason, he will return to the Company
immediately all memoranda, books, papers, plans, information, letters and other
data, and all copies thereof or therefrom, in any way relating to the business
of the Company and its affiliates, except that he may retain personal notes,
notebooks and diaries. Executive further agrees that he will not retain or use
for his account at any time any trade names, trademark or other proprietary
business designation used or owned in connection with the business of the
Company or its affiliates.
10. SPECIFIC PERFORMANCE AND OTHER REMEDIES. Executive acknowledges and
agrees that the Company has no adequate remedy at law for a breach or threatened
breach of any of the provisions of Section 9 and, in recognition of this fact,
Executive agrees that, in the event of such a breach or threatened breach, in
addition to any remedies at law, the Company, without posting any bond and
without notice to the Executive, shall be entitled to obtain equitable relief in
the form of specific performance, temporary restraining order, temporary or
permanent injunction or any other equitable remedy which may then be available.
Nothing in this Agreement shall be construed as prohibiting the Company from
pursuing any other remedies at law or in equity that it may have or any other
rights that it may have under any other agreement.
11. MISCELLANEOUS.
(a) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Missouri without
reference to principles of conflict of laws.
(b) ENTIRE AGREEMENT/AMENDMENTS. This Agreement contains the
entire understanding of the parties with respect to the subject matter hereof
and supersedes any prior agreements between the Company and Executive. There are
no restrictions, agreements, promises, warranties, covenants or undertakings
between the parties with respect to the subject matter herein other than those
expressly set forth herein and therein. No provision in this Agreement may be
amended unless such amendment is agreed to in writing.
5
(c) NO WAIVER. The failure of a party to insist upon strict
adherence to any term of this Agreement on any occasion shall not be considered
a waiver of such party's rights or deprive such party of the right thereafter to
insist upon strict adherence to that term or any other term of this Agreement.
No waiver by either party of any breach by the other party of any condition or
provision contained in this Agreement to be performed by such other party shall
be deemed a waiver of a similar or dissimilar condition or provision at the same
or any prior or subsequent time. Any waiver must be in writing and signed by the
Executive or the Company, as the case may be.
(d) SEVERABILITY. It is expressly understood and agreed that
although Executive and the Company consider the restrictions contained in
Section 9 to be reasonable, if a final judicial determination is made by a court
of competent jurisdiction that the time or territory restriction in Section 9 or
any other restriction contained in Section 9 is an unenforceable restriction
against Executive, such provision shall not be rendered void but shall be deemed
amended to apply to such maximum time and territory, if applicable, or otherwise
to such maximum extent as such court may judicially determine or indicate to be
enforceable. Alternatively, if any court of competent jurisdiction finds that
any restriction contained in Section 9 is unenforceable, and such restriction
cannot be amended so as to make it enforceable, such finding shall not affect
the enforceability of any of the other restrictions contained herein. In the
event that any one or more of the other provisions of this Agreement shall be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions of this Agreement shall not be
affected thereby.
(e) ASSIGNMENT. This Agreement shall not be assignable by
either party without the consent of the other party.
(f) SUCCESSORS. This Agreement shall inure to the benefit of
and be binding upon the personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees of the
parties hereto. The Executive shall be entitled to select (and change, to the
extent permitted under any applicable law) a beneficiary or beneficiaries to
receive any compensation or benefit payable hereunder following the Executive's
death by giving the Company written notice thereof. In the event of the
Executive's death or a judicial determination of his incompetence, reference in
this Agreement to the Executive shall be deemed, where appropriate, to refer to
his beneficiary, estate or other legal representative.
(g) COMMUNICATIONS. For the purpose of this Agreement, notices
and all other communications provided for in this Agreement shall be in writing
and shall be deemed to have been duly given when faxed or delivered or two
business days after being mailed by United States registered or certified mail,
return receipt requested, postage prepaid, addressed (i) to the Executive at his
address then appearing in the personnel records of the Company and; (ii) to the
Company at the Company's then current headquarters; or (iii) to such other
address as either party may have furnished to the other in writing in accordance
herewith, with such notice of change of address being effective only upon
receipt.
(h) WITHHOLDING TAXES. The Company may withhold from any and
all amounts payable under this Agreement such Federal, state, local and any
other applicable taxes as may be required to be withheld pursuant to any
applicable law or regulation.
6
(i) SURVIVORSHIP. The respective rights and obligations of the
parties hereunder shall survive any termination of Executive's employment to the
extent necessary to assure the agreed preservation of such rights and
obligations.
(j) REPRESENTATIONS. Each party represents and warrants to the
other that he or it is fully authorized and empowered to enter into this
Agreement and that the performance of his or its obligations under this
Agreement will not violate any agreement between him or it and any other person
or entity.
(k) ARBITRATION. The parties agree that all disputes arising
under or in connection with this Agreement, and any and all claims by the
Executive relating to his employment with the Company, including any claims of
discrimination arising under Title VII of the Civil Rights Act of 1964, as
amended, the Age Discrimination in Employment Act, the Americans with
Disabilities Act or any similar federal, state or local law will be submitted to
arbitration in the County and State of New York to the American Arbitration
Association ("AAA") under its rules then prevailing for the type of claim in
issue. The parties each hereby specifically submit to the personal jurisdiction
of any federal or state court located in the County of St. Louis and the State
of Missouri for any such action and further agree that service of process may be
made within or without the State of Missouri by giving notice in the manner
provided herein.
In any action or proceeding relating to this Agreement, the
parties agree that no damages other than compensatory damages shall be sought or
claimed by either party and each party waives any claim, right or entitlement to
punitive, exemplary, statutory or consequential damages, or any other damages,
and each relevant arbitration panel is specifically divested of any power to
award any damages in the nature of punitive, exemplary, statutory or
consequential damages, or any other damages of any kind or nature in excess of
compensatory damages.
(l) FEES AND EXPENSES. In the event of a dispute by the
Company or Executive as to the validity or enforceability of, or liability
under, any provision of this Agreement and with respect to any claims arising in
connection with Executive's employment with the Company, each party shall pay
its own legal fees and expenses incurred in connection with such dispute or
claim; provided, however, and notwithstanding the foregoing, in the event of a
breach of this Agreement by the Company at any time after a Change of Control,
whether or not litigation is commenced, then the Company shall pay to Executive,
in addition to any damages incurred by Executive, the costs and expenses
incurred by Executive in connection with any such breach (including, without
limitation, all court costs and reasonable attorneys' fees and costs).
(m) COUNTERPARTS. This Agreement may be signed in
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
(n) HEADINGS. The headings of the sections contained in this
Agreement are for convenience only and shall not be deemed to control or affect
the meaning or construction of any provision of this Agreement. Any reference to
the Executive in the masculine gender herein is for convenience and is not
intended to express any preference by the Company for executives of any gender.
7
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
______________________________________________
Xxxxx X. Xxxxxxxx
Executive
BRAND SERVICES, INC.
By: __________________________________________
Name: Xxxxx Xxxxx
Title: Chairman of the Board of Directors
8
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of April 1, 2001, by and between Brand
Services, Inc., a Delaware Corporation (the "Company") and Xxxxx X. XxXxx
("Executive").
WHEREAS, the Company employs Executive as a Regional Operations Vice
President (ROVP); and
WHEREAS, the Company and Executive desire to continue the Executive's
employment by the Company and to enter into an agreement (the "Agreement")
embodying certain terms of Executive's future employment;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the parties
agree as follows:
1. AGREEMENT TERM. Executive's continued employment by the Company
shall commence on April 1, 2001, and shall, unless extended as set forth below,
terminate on March 31, 2003 (the "Expiration Date"). Executive's employment
shall be automatically extended on a year to year basis following the Expiration
Date, unless a written notice to terminate is given by the Company to Executive
not less than thirty (30), nor more than sixty (60), days prior to the scheduled
expiration date. Upon the occurrence of a change of control of more than fifty
percent (50%) of the common stock of the Company or its parent corporation DLJ
Brand Holdings, Inc., a Delaware corporation (other than through a sale into the
public markets) (hereinafter referred to as a "Change of Control"), the
Expiration Date shall be automatically extended through and including the second
anniversary of the effective date as of which such Change of Control is
consummated, and thereafter may be further extended on a year to year basis in
the manner set forth in the preceding sentence. The period commencing as of
April 1, 2001, and ending on the Expiration Date, as the same may be extended
from time to time hereunder, is hereinafter referred to as the "Employment
Term". Notwithstanding the foregoing, the Employment Term shall terminate in any
and all events upon the termination of Executive's employment hereunder as
hereinafter provided.
2. POSITIONS. During the Employment Term, executive shall serve as
Regional Operations Vice President (ROVP). Executive shall report directly to
the President and Chief Executive Officer of the Company (the "CEO") and shall
have such duties and authority commensurate with such position as shall be
determined from time to time by the CEO. Executive shall devote substantially
all of his business time and best efforts to the performance of his duties
hereunder and shall not engage in any other business, profession or occupation
for compensation or otherwise.
3. BASE SALARY. During the Employment Term, the Company shall pay
Executive a base salary (the "Base Salary") at the annual rate of not less than
$155,825, payable in arrears, in accordance with the usual payment practices of
the Company. Executive's Base Salary shall be subject to periodic review by the
CEO and the Compensation Committee of the Board of Directors, not less
frequently than annually, beginning January 1, 2002.
4. BONUS.
(a) With respect to each fiscal year in the Employment Term,
Executive shall be eligible for a bonus of up to 120% of his Base Salary (the
"Annual Bonus") to be determined annually in accordance with the Company's
annual bonus plan, as earned through the achievement of certain profitability
and performance objectives which are annually developed by the CEO and
as reviewed and approved by the Compensation Committee of the Board of Directors
(the "Bonus Plan").
(b) Any Bonus payable hereunder shall be paid at or about the
same time bonuses are paid to the Company's other senior executives and, in the
case of the Annual Bonus, in accordance with the terms of the Bonus Plan.
5. EMPLOYEE BENEFITS. During the Employment Term, Executive shall be
entitled to participate on a basis no less favorable than other senior
executives of the Company in all retirement, welfare benefit, incentive
compensation, perquisite and other plans and arrangements of the Company
applicable to senior executives of the Company, as in effect from time to time.
6. BUSINESS EXPENSES. During the Employment Term, the Company shall
reimburse such of Executive's travel, entertainment and other business expenses
as are reasonably and necessarily incurred by Executive during the Employment
Term in the performance of his duties hereunder, in accordance with the
Company's policies as in effect from time to time.
7. TERMINATION. The Employment Term may be terminated prior to its
scheduled expiration for any of the reasons set forth in this Section 7 or
Section 8. Upon a termination or expiration of the Employment Term, Executive
shall be entitled to the payments, if any, described in this Section 7 or
Section 8, whichever is applicable.
(a) FOR CAUSE BY THE COMPANY, OR BY EXECUTIVE FOR ANY REASON.
The Employment Term may be terminated prior to its scheduled expiration by the
Company for Cause (as defined below). In addition, the Employment Term may be
terminated prior to its scheduled expiration by Executive for any reason. If the
Employment Term is terminated by the Company for Cause prior to its scheduled
expiration, or by Executive for any reason prior to its scheduled expiration,
then Executive shall be entitled to receive his Base Salary through the date of
termination, any Bonus that has been earned in accordance with Section 4 for a
prior fiscal year but not yet paid and any unreimbursed business expenses,
payable promptly following the later of the date of such termination and the
date on which the appropriate documentation is provided. All other benefits
following termination of the Employment Term pursuant to this Section 7(a) shall
be determined in accordance with the plans, policies and practices of the
Company.
(b) DEATH OR DISABILITY. The Employment Term shall terminate
prior to its scheduled expiration upon Executive's death or, at the Company's
election, if Executive incurs a Disability (as hereinafter defined). If the
Employment Term is terminated prior to its scheduled expiration by reason of
Executive's death or, at the Company's election, if Executive incurs a
Disability, Executive's estate or, in the case of Executive's Disability,
Executive (or such other person duly appointed by a court of competent
jurisdiction to manage Executive's affairs) shall receive (i) the amounts
described under Section 7(a), and subject to Executive's continued compliance
with the covenants set forth in Section 9 in the event of Executive's
Disability, (ii) continued payment of Base Salary through the first anniversary
of the date of death or the effective date as of which Executive incurs a
Disability.
All other benefits following termination of the Employment
Term pursuant to this Section 7(b) shall be determined in accordance with the
plans, policies and practices of the Company.
2
(c) BY THE COMPANY WITHOUT CAUSE. The Employment Term may be
terminated prior to its scheduled expiration by the Company without Cause. If
the Employment Term is terminated prior to its scheduled expiration by the
Company without Cause, then subject to Executive's continued compliance with the
covenants set forth in Section 9, Executive shall receive (i) the amounts
described under Section 7(a); (ii) continued payment of Base Salary through the
last day of the 24th month following the date of termination (the "Severance
Period"); (iii) continued coverage under the Company's welfare benefit
arrangements as in effect from time to time through the earlier of (A) the end
of the Severance Period, and (B) such time as Executive is eligible to receive
comparable welfare benefits from a subsequent employer. At the Executive's sole
discretion, a lump sum amount equal to 12 months of annual Base Salary may be
paid to the Executive commencing with the first day of the 13th month of the
Severance Period in lieu of monthly payments remaining under the Severance
Period. All other benefits following termination of the Employment Term pursuant
to this Section 7(c) shall be determined in accordance with the plans, policies
and practices of the Company.
(d) UPON SCHEDULED EXPIRATION. The Employment Term shall
expire on the Expiration Date (after giving effect to any extensions set forth
in Section 1 hereof). In the event the Employment Term expires, then Executive
shall only be entitled to receive the amounts described in Section 7(a) above.
(e) DEFINITIONS. For purposes of this Section 7, the following
terms shall have the following meanings:
(i) "Cause" shall mean:
(A) Executive's willful and continued
failure substantially to perform his duties under the
Agreement (other than as a result of total or partial
incapacity due to physical or mental illness);
(B) An act or acts on Executive's part
constituting a felony under the laws of the United
States or any other state thereof or any other
jurisdiction in which the Company conducts business;
(C) Executive's being under the influence of
illegal drugs or alcohol while performing his duties
hereunder;
(D) Any other act or omission which is
materially injurious to the financial condition or
business reputation of the Company or any of its
affiliates; or
(E) Executive's breach of the provisions of
Section 10.
For purposes of this definition, no act or failure to act
shall be deemed "willful" unless effected by Executive not in good
faith and without a reasonable belief that such action or failure to
act was in or not opposed to the Company's best interests.
(ii) "Disability" shall mean Executive's
inability, as a result of physical or mental illness, to perform the duties of
the position(s) specified in Section 2 for a period of 90 consecutive days or
for an aggregate of 90 days in any twelve consecutive month period. Any
3
question as to the existence of the Disability of Executive as to which
Executive and the Company cannot agree shall be determined in writing by a
qualified independent physician selected by the Company and reasonably
acceptable to Executive. The determination of Disability made in writing to the
Company and Executive shall be final and conclusive for all purposes of the
Agreement.
(f) NOTICE OF TERMINATION. Any purported termination of the
Employment Term prior to its scheduled expiration by the Company or by Executive
shall be communicated by written notice of termination to the other party
hereto. For purposes of this Agreement, a "Notice of Termination" shall mean a
notice which shall indicate the specific termination provision in this Agreement
relied upon and shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination under the provision so indicated.
(g) RELEASE. Any payments by the Company to Executive under
this Section 7 or Section 8 below or in connection with any dispute arising
under or in connection with this Agreement or relating to Executive's employment
with the Company (including payments pursuant to arbitration as provided for in
Section 11(k) hereof) will be contingent upon the execution by Executive of a
release of any claims Executive may have against the Company, its affiliates or
any successor to the Company, such release to be in a form satisfactory to the
Company in its sole discretion.
8. CHANGE OF TITLE, JOB RESPONSIBILITIES, BASE SALARY AND/OR BONUS
OPPORTUNITY. Notwithstanding the provisions of Section 7(a) to the contrary,
from and after the occurrence of a Change of Control with respect to the
Company, if Executive's title and/or job responsibilities are changed from those
described in Section 2 of this Agreement, or if Executive's base salary is
reduced or if Executive's opportunity to earn an annual bonus up to 120% of base
salary as set forth in Section 4 is eliminated, Executive shall have the option
to terminate his employment with the Company and, subject to Executive's
continued compliance with the covenants set forth in Section 9, to receive the
amounts and benefits set forth in Section 7(c) of this Agreement, at the time
and for the duration more particularly set forth therein.
9. NON-COMPETITION/CONFIDENTIAL INFORMATION.
(a) Executive acknowledges and recognizes the highly
competitive nature of the businesses of the Company and its affiliates and
accordingly agrees that during the Employment Term and through the later of the
Severance Period or twelve (12) months following the date of termination of
employment:
(i) Executive will not directly or indirectly engage
in any business which is in competition with any line of business
conducted by the Company or its affiliates (including without
limitation by performing or soliciting the performance of services for
any person who is a customer or client of the Company or any of its
affiliates) whether such engagement is as an officer, director,
proprietor, employee, partner, investor (other than as holder of less
than 1% of the outstanding capital stock of a publicly traded
corporation), consultant, advisor, agent, sales representative or other
participant, in any geographic area in which the Company or any of its
affiliates conducted any such competing line of business.
(ii) Executive will not directly or indirectly assist
others in engaging in any of the activities in which Executive is
prohibited from engaging in by clause (i) above.
4
(b) Executive will not directly or indirectly induce any
employee of the Company or any of its affiliates to engage in any activity in
which Executive is prohibited to engage by paragraph (a) above or to terminate
his employment with the Company or any of its affiliates, and will not directly
or indirectly employ or offer employment to any person who was employed by the
Company or any of its affiliates unless such person shall have ceased to be
employed by the Company or any of its affiliates for a period of at least 12
months.
(c) Executive will not at any time (whether during or after
his employment with the Company) disclose or use for his own benefit or purposes
or the benefit or purposes of any other person, firm, partnership, joint
venture, association, corporation or other business organization, entity or
enterprise other than the Company and any of its subsidiaries or affiliates, any
trade secrets, information, data, or other confidential information relating to
customers, development programs, costs, marketing, trading, investment, sales
activities, promotion, credit and financial data, manufacturing processes,
financing methods, plans, or the business and affairs of the Company generally
or of any subsidiary or affiliate of the Company, provided that the foregoing
shall not apply to information which is not unique to the Company or which is
generally known to the industry or the public other than as a result of
Executive's breach of this covenant. Executive agrees that upon termination of
his employment with the Company for any reason, he will return to the Company
immediately all memoranda, books, papers, plans, information, letters and other
data, and all copies thereof or therefrom, in any way relating to the business
of the Company and its affiliates, except that he may retain personal notes,
notebooks and diaries. Executive further agrees that he will not retain or use
for his account at any time any trade names, trademark or other proprietary
business designation used or owned in connection with the business of the
Company or its affiliates.
10. SPECIFIC PERFORMANCE AND OTHER REMEDIES. Executive acknowledges and
agrees that the Company has no adequate remedy at law for a breach or threatened
breach of any of the provisions of Section 9 and, in recognition of this fact,
Executive agrees that, in the event of such a breach or threatened breach, in
addition to any remedies at law, the Company, without posting any bond and
without notice to the Executive, shall be entitled to obtain equitable relief in
the form of specific performance, temporary restraining order, temporary or
permanent injunction or any other equitable remedy which may then be available.
Nothing in this Agreement shall be construed as prohibiting the Company from
pursuing any other remedies at law or in equity that it may have or any other
rights that it may have under any other agreement.
11. MISCELLANEOUS.
(a) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Missouri without reference
to principles of conflict of laws.
(b) ENTIRE AGREEMENT/AMENDMENTS. This Agreement contains the
entire understanding of the parties with respect to the subject matter hereof
and supersedes any prior agreements between the Company and Executive. There are
no restrictions, agreements, promises, warranties, covenants or undertakings
between the parties with respect to the subject matter herein other than those
expressly set forth herein and therein. No provision in this Agreement may be
amended unless such amendment is agreed to in writing.
5
(c) NO WAIVER. The failure of a party to insist upon strict
adherence to any term of this Agreement on any occasion shall not be considered
a waiver of such party's rights or deprive such party of the right thereafter to
insist upon strict adherence to that term or any other term of this Agreement.
No waiver by either party of any breach by the other party of any condition or
provision contained in this Agreement to be performed by such other party shall
be deemed a waiver of a similar or dissimilar condition or provision at the same
or any prior or subsequent time. Any waiver must be in writing and signed by the
Executive or the Company, as the case may be.
(d) SEVERABILITY. It is expressly understood and agreed that
although Executive and the Company consider the restrictions contained in
Section 9 to be reasonable, if a final judicial determination is made by a court
of competent jurisdiction that the time or territory restriction in Section 9 or
any other restriction contained in Section 9 is an unenforceable restriction
against Executive, such provision shall not be rendered void but shall be deemed
amended to apply to such maximum time and territory, if applicable, or otherwise
to such maximum extent as such court may judicially determine or indicate to be
enforceable. Alternatively, if any court of competent jurisdiction finds that
any restriction contained in Section 9 is unenforceable, and such restriction
cannot be amended so as to make it enforceable, such finding shall not affect
the enforceability of any of the other restrictions contained herein. In the
event that any one or more of the other provisions of this Agreement shall be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions of this Agreement shall not be
affected thereby.
(e) ASSIGNMENT. This Agreement shall not be assignable by
either party without the consent of the other party.
(f) SUCCESSORS. This Agreement shall inure to the benefit of
and be binding upon the personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees of the
parties hereto. The Executive shall be entitled to select (and change, to the
extent permitted under any applicable law) a beneficiary or beneficiaries to
receive any compensation or benefit payable hereunder following the Executive's
death by giving the Company written notice thereof. In the event of the
Executive's death or a judicial determination of his incompetence, reference in
this Agreement to the Executive shall be deemed, where appropriate, to refer to
his beneficiary, estate or other legal representative.
(g) COMMUNICATIONS. For the purpose of this Agreement, notices
and all other communications provided for in this Agreement shall be in writing
and shall be deemed to have been duly given when faxed or delivered or two
business days after being mailed by United States registered or certified mail,
return receipt requested, postage prepaid, addressed (i) to the Executive at his
address then appearing in the personnel records of the Company and; (ii) to the
Company at the Company's then current headquarters; or (iii) to such other
address as either party may have furnished to the other in writing in accordance
herewith, with such notice of change of address being effective only upon
receipt.
(h) WITHHOLDING TAXES. The Company may withhold from any and
all amounts payable under this Agreement such Federal, state, local and any
other applicable taxes as may be required to be withheld pursuant to any
applicable law or regulation.
6
(i) SURVIVORSHIP. The respective rights and obligations of the
parties hereunder shall survive any termination of Executive's employment to the
extent necessary to assure the agreed preservation of such rights and
obligations.
(j) REPRESENTATIONS. Each party represents and warrants to the
other that he or it is fully authorized and empowered to enter into this
Agreement and that the performance of his or its obligations under this
Agreement will not violate any agreement between him or it and any other person
or entity.
(k) ARBITRATION. The parties agree that all disputes arising
under or in connection with this Agreement, and any and all claims by the
Executive relating to his employment with the Company, including any claims of
discrimination arising under Title VII of the Civil Rights Act of 1964, as
amended, the Age Discrimination in Employment Act, the Americans with
Disabilities Act or any similar federal, state or local law will be submitted to
arbitration in the County and State of New York to the American Arbitration
Association ("AAA") under its rules then prevailing for the type of claim in
issue. The parties each hereby specifically submit to the personal jurisdiction
of any federal or state court located in the County of St. Louis and the State
of Missouri for any such action and further agree that service of process may be
made within or without the State of Missouri by giving notice in the manner
provided herein.
In any action or proceeding relating to this Agreement, the
parties agree that no damages other than compensatory damages shall be sought or
claimed by either party and each party waives any claim, right or entitlement to
punitive, exemplary, statutory or consequential damages, or any other damages,
and each relevant arbitration panel is specifically divested of any power to
award any damages in the nature of punitive, exemplary, statutory or
consequential damages, or any other damages of any kind or nature in excess of
compensatory damages.
(l) FEES AND EXPENSES. In the event of a dispute by the
Company or Executive as to the validity or enforceability of, or liability
under, any provision of this Agreement and with respect to any claims arising in
connection with Executive's employment with the Company, each party shall pay
its own legal fees and expenses incurred in connection with such dispute or
claim; provided, however, and notwithstanding the foregoing, in the event of a
breach of this Agreement by the Company at any time after a Change of Control,
whether or not litigation is commenced, then the Company shall pay to Executive,
in addition to any damages incurred by Executive, the costs and expenses
incurred by Executive in connection with any such breach (including, without
limitation, all court costs and reasonable attorneys' fees and costs).
(m) COUNTERPARTS. This Agreement may be signed in
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
(n) HEADINGS. The headings of the sections contained in this
Agreement are for convenience only and shall not be deemed to control or affect
the meaning or construction of any provision of this Agreement. Any reference to
the Executive in the masculine gender herein is for convenience and is not
intended to express any preference by the Company for executives of any gender.
7
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
____________________________________________
Xxxxx X. XxXxx
Executive
BRAND SERVICES, INC.
By: ________________________________________
Name: Xxxxx Xxxxx
Title: Chairman of the Board of Directors
8
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of April 1, 2001, by and between Brand
Services, Inc., a Delaware Corporation (the "Company") and Xxxxxxx X. Xxxxxxxx
("Executive").
WHEREAS, the Company employs Executive as a VP, Finance and CFO; and
WHEREAS, the Company and Executive desire to continue the Executive's
employment by the Company and to enter into an agreement (the "Agreement")
embodying certain terms of Executive's future employment;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the parties
agree as follows:
1. AGREEMENT TERM. Executive's continued employment by the Company
shall commence on April 1, 2001, and shall, unless extended as set forth below,
terminate on March 31, 2003 (the "Expiration Date"). Executive's employment
shall be automatically extended on a year to year basis following the Expiration
Date, unless a written notice to terminate is given by the Company to Executive
not less than thirty (30), nor more than sixty (60), days prior to the scheduled
expiration date. Upon the occurrence of a change of control of more than fifty
percent (50%) of the common stock of the Company or its parent corporation DLJ
Brand Holdings, Inc., a Delaware corporation (other than through a sale into the
public markets) (hereinafter referred to as a "Change of Control"), the
Expiration Date shall be automatically extended through and including the second
anniversary of the effective date as of which such Change of Control is
consummated, and thereafter may be further extended on a year to year basis in
the manner set forth in the preceding sentence. The period commencing as of
April 1, 2001, and ending on the Expiration Date, as the same may be extended
from time to time hereunder, is hereinafter referred to as the "Employment
Term". Notwithstanding the foregoing, the Employment Term shall terminate in any
and all events upon the termination of Executive's employment hereunder as
hereinafter provided.
2. POSITIONS. During the Employment Term, executive shall serve as VP,
Finance and CFO. Executive shall report directly to the President and Chief
Executive Officer of the Company (the "CEO") and shall have such duties and
authority commensurate with such position as shall be determined from time to
time by the CEO. Executive shall devote substantially all of his business time
and best efforts to the performance of his duties hereunder and shall not engage
in any other business, profession or occupation for compensation or otherwise.
3. BASE SALARY. During the Employment Term, the Company shall pay
Executive a base salary (the "Base Salary") at the annual rate of not less than
$140,000, payable in arrears, in accordance with the usual payment practices of
the Company. Executive's Base Salary shall be subject to periodic review by the
CEO and the Compensation Committee of the Board of Directors, not less
frequently than annually, beginning January 1, 2002.
4. BONUS.
(a) With respect to each fiscal year in the Employment Term,
Executive shall be eligible for a bonus of up to 120% of his Base Salary (the
"Annual Bonus") to be determined annually in accordance with the Company's
annual bonus plan, as earned through the achievement of certain profitability
and performance objectives which are annually developed by the CEO and as
reviewed and approved by the Compensation Committee of the Board of Directors
(the "Bonus Plan").
(b) Any Bonus payable hereunder shall be paid at or about the
same time bonuses are paid to the Company's other senior executives and, in the
case of the Annual Bonus, in accordance with the terms of the Bonus Plan.
5. EMPLOYEE BENEFITS. During the Employment Term, Executive shall be
entitled to participate on a basis no less favorable than other senior
executives of the Company in all retirement, welfare benefit, incentive
compensation, perquisite and other plans and arrangements of the Company
applicable to senior executives of the Company, as in effect from time to time.
6. BUSINESS EXPENSES. During the Employment Term, the Company shall
reimburse such of Executive's travel, entertainment and other business expenses
as are reasonably and necessarily incurred by Executive during the Employment
Term in the performance of his duties hereunder, in accordance with the
Company's policies as in effect from time to time.
7. TERMINATION. The Employment Term may be terminated prior to its
scheduled expiration for any of the reasons set forth in this Section 7 or
Section 8. Upon a termination or expiration of the Employment Term, Executive
shall be entitled to the payments, if any, described in this Section 7 or
Section 8, whichever is applicable.
(a) FOR CAUSE BY THE COMPANY, OR BY EXECUTIVE FOR ANY REASON.
The Employment Term may be terminated prior to its scheduled expiration by the
Company for Cause (as defined below). In addition, the Employment Term may be
terminated prior to its scheduled expiration by Executive for any reason. If the
Employment Term is terminated by the Company for Cause prior to its scheduled
expiration, or by Executive for any reason prior to its scheduled expiration,
then Executive shall be entitled to receive his Base Salary through the date of
termination, any Bonus that has been earned in accordance with Section 4 for a
prior fiscal year but not yet paid and any unreimbursed business expenses,
payable promptly following the later of the date of such termination and the
date on which the appropriate documentation is provided. All other benefits
following termination of the Employment Term pursuant to this Section 7(a) shall
be determined in accordance with the plans, policies and practices of the
Company.
(b) DEATH OR DISABILITY. The Employment Term shall terminate
prior to its scheduled expiration upon Executive's death or, at the Company's
election, if Executive incurs a Disability (as hereinafter defined). If the
Employment Term is terminated prior to its scheduled expiration by reason of
Executive's death or, at the Company's election, if Executive incurs a
Disability, Executive's estate or, in the case of Executive's Disability,
Executive (or such other person duly appointed by a court of competent
jurisdiction to manage Executive's affairs) shall receive (i) the amounts
described under Section 7(a), and subject to Executive's continued compliance
with the covenants set forth in Section 9 in the event of Executive's
Disability, (ii) continued payment of Base Salary through the first anniversary
of the date of death or the effective date as of which Executive incurs a
Disability.
All other benefits following termination of the Employment
Term pursuant to this Section 7(b) shall be determined in accordance with the
plans, policies and practices of the Company.
(c) BY THE COMPANY WITHOUT CAUSE. The Employment Term may be
terminated prior to its scheduled expiration by the Company without Cause. If
the Employment
2
Term is terminated prior to its scheduled expiration by the Company without
Cause, then subject to Executive's continued compliance with the covenants set
forth in Section 9, Executive shall receive (i) the amounts described under
Section 7(a); (ii) continued payment of Base Salary through the last day of the
24th month following the date of termination (the "Severance Period"); (iii)
continued coverage under the Company's welfare benefit arrangements as in effect
from time to time through the earlier of (A) the end of the Severance Period,
and (B) such time as Executive is eligible to receive comparable welfare
benefits from a subsequent employer. At the Executive's sole discretion, a lump
sum amount equal to 12 months of annual Base Salary may be paid to the Executive
commencing with the first day of the 13th month of the Severance Period in lieu
of monthly payments remaining under the Severance Period. All other benefits
following termination of the Employment Term pursuant to this Section 7(c) shall
be determined in accordance with the plans, policies and practices of the
Company.
(d) UPON SCHEDULED EXPIRATION. The Employment Term shall
expire on the Expiration Date (after giving effect to any extensions set forth
in Section 1 hereof). In the event the Employment Term expires, then Executive
shall only be entitled to receive the amounts described in Section 7(a) above.
(e) DEFINITIONS. For purposes of this Section 7, the following
terms shall have the following meanings:
(i) "Cause" shall mean:
(A) Executive's willful and continued
failure substantially to perform his duties under the
Agreement (other than as a result of total or partial
incapacity due to physical or mental illness);
(B) An act or acts on Executive's part
constituting a felony under the laws of the United
States or any other state thereof or any other
jurisdiction in which the Company conducts business;
(C) Executive's being under the influence of
illegal drugs or alcohol while performing his duties
hereunder;
(D) Any other act or omission which is
materially injurious to the financial condition or
business reputation of the Company or any of its
affiliates; or
(E) Executive's breach of the provisions of
Section 10.
For purposes of this definition, no act or failure to act
shall be deemed "willful" unless effected by Executive not in good
faith and without a reasonable belief that such action or failure to
act was in or not opposed to the Company's best interests.
(ii) "Disability" shall mean Executive's inability,
as a result of physical or mental illness, to perform the duties of the
position(s) specified in Section 2 for a period of 90 consecutive days or for an
aggregate of 90 days in any twelve consecutive month period. Any question as to
the existence of the Disability of Executive as to which Executive and the
Company cannot agree shall be determined in writing by a qualified independent
physician selected by the
3
Company and reasonably acceptable to Executive. The determination of Disability
made in writing to the Company and Executive shall be final and conclusive for
all purposes of the Agreement.
(f) NOTICE OF TERMINATION. Any purported termination of the
Employment Term prior to its scheduled expiration by the Company or by Executive
shall be communicated by written notice of termination to the other party
hereto. For purposes of this Agreement, a "Notice of Termination" shall mean a
notice which shall indicate the specific termination provision in this Agreement
relied upon and shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination under the provision so indicated.
(g) RELEASE. Any payments by the Company to Executive under
this Section 7 or Section 8 below or in connection with any dispute arising
under or in connection with this Agreement or relating to Executive's employment
with the Company (including payments pursuant to arbitration as provided for in
Section 11(k) hereof) will be contingent upon the execution by Executive of a
release of any claims Executive may have against the Company, its affiliates or
any successor to the Company, such release to be in a form satisfactory to the
Company in its sole discretion.
8. CHANGE OF TITLE, JOB RESPONSIBILITIES, BASE SALARY AND/OR BONUS
OPPORTUNITY. Notwithstanding the provisions of Section 7(a) to the contrary,
from and after the occurrence of a Change of Control with respect to the
Company, if Executive's title and/or job responsibilities are changed from those
described in Section 2 of this Agreement, or if Executive's base salary is
reduced or if Executive's opportunity to earn an annual bonus up to 120% of base
salary as set forth in Section 4 is eliminated, Executive shall have the option
to terminate his employment with the Company and, subject to Executive's
continued compliance with the covenants set forth in Section 9, to receive the
amounts and benefits set forth in Section 7(c) of this Agreement, at the time
and for the duration more particularly set forth therein.
9. NON-COMPETITION/CONFIDENTIAL INFORMATION.
(a) Executive acknowledges and recognizes the highly
competitive nature of the businesses of the Company and its affiliates and
accordingly agrees that during the Employment Term and through the later of the
Severance Period or twelve (12) months following the date of termination of
employment:
(i) Executive will not directly or indirectly engage
in any business which is in competition with any line of business
conducted by the Company or its affiliates (including without
limitation by performing or soliciting the performance of services for
any person who is a customer or client of the Company or any of its
affiliates) whether such engagement is as an officer, director,
proprietor, employee, partner, investor (other than as holder of less
than 1% of the outstanding capital stock of a publicly traded
corporation), consultant, advisor, agent, sales representative or other
participant, in any geographic area in which the Company or any of its
affiliates conducted any such competing line of business.
(ii) Executive will not directly or indirectly assist
others in engaging in any of the activities in which Executive is
prohibited from engaging in by clause (i) above.
4
(b) Executive will not directly or indirectly induce any
employee of the Company or any of its affiliates to engage in any activity in
which Executive is prohibited to engage by paragraph (a) above or to terminate
his employment with the Company or any of its affiliates, and will not directly
or indirectly employ or offer employment to any person who was employed by the
Company or any of its affiliates unless such person shall have ceased to be
employed by the Company or any of its affiliates for a period of at least 12
months.
(c) Executive will not at any time (whether during or after
his employment with the Company) disclose or use for his own benefit or purposes
or the benefit or purposes of any other person, firm, partnership, joint
venture, association, corporation or other business organization, entity or
enterprise other than the Company and any of its subsidiaries or affiliates, any
trade secrets, information, data, or other confidential information relating to
customers, development programs, costs, marketing, trading, investment, sales
activities, promotion, credit and financial data, manufacturing processes,
financing methods, plans, or the business and affairs of the Company generally
or of any subsidiary or affiliate of the Company, provided that the foregoing
shall not apply to information which is not unique to the Company or which is
generally known to the industry or the public other than as a result of
Executive's breach of this covenant. Executive agrees that upon termination of
his employment with the Company for any reason, he will return to the Company
immediately all memoranda, books, papers, plans, information, letters and other
data, and all copies thereof or therefrom, in any way relating to the business
of the Company and its affiliates, except that he may retain personal notes,
notebooks and diaries. Executive further agrees that he will not retain or use
for his account at any time any trade names, trademark or other proprietary
business designation used or owned in connection with the business of the
Company or its affiliates.
10. SPECIFIC PERFORMANCE AND OTHER REMEDIES. Executive acknowledges and
agrees that the Company has no adequate remedy at law for a breach or threatened
breach of any of the provisions of Section 9 and, in recognition of this fact,
Executive agrees that, in the event of such a breach or threatened breach, in
addition to any remedies at law, the Company, without posting any bond and
without notice to the Executive, shall be entitled to obtain equitable relief in
the form of specific performance, temporary restraining order, temporary or
permanent injunction or any other equitable remedy which may then be available.
Nothing in this Agreement shall be construed as prohibiting the Company from
pursuing any other remedies at law or in equity that it may have or any other
rights that it may have under any other agreement.
11. MISCELLANEOUS.
(a) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Missouri without reference
to principles of conflict of laws.
(b) ENTIRE AGREEMENT/AMENDMENTS. This Agreement contains the
entire understanding of the parties with respect to the subject matter hereof
and supersedes any prior agreements between the Company and Executive. There are
no restrictions, agreements, promises, warranties, covenants or undertakings
between the parties with respect to the subject matter herein other than those
expressly set forth herein and therein. No provision in this Agreement may be
amended unless such amendment is agreed to in writing.
(c) NO WAIVER. The failure of a party to insist upon strict
adherence to any term of this Agreement on any occasion shall not be considered
a waiver of such party's rights or
5
deprive such party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement. No waiver by either party of any
breach by the other party of any condition or provision contained in this
Agreement to be performed by such other party shall be deemed a waiver of a
similar or dissimilar condition or provision at the same or any prior or
subsequent time. Any waiver must be in writing and signed by the Executive or
the Company, as the case may be.
(d) SEVERABILITY. It is expressly understood and agreed that
although Executive and the Company consider the restrictions contained in
Section 9 to be reasonable, if a final judicial determination is made by a court
of competent jurisdiction that the time or territory restriction in Section 9 or
any other restriction contained in Section 9 is an unenforceable restriction
against Executive, such provision shall not be rendered void but shall be deemed
amended to apply to such maximum time and territory, if applicable, or otherwise
to such maximum extent as such court may judicially determine or indicate to be
enforceable. Alternatively, if any court of competent jurisdiction finds that
any restriction contained in Section 9 is unenforceable, and such restriction
cannot be amended so as to make it enforceable, such finding shall not affect
the enforceability of any of the other restrictions contained herein. In the
event that any one or more of the other provisions of this Agreement shall be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions of this Agreement shall not be
affected thereby.
(e) ASSIGNMENT. This Agreement shall not be assignable by
either party without the consent of the other party.
(f) SUCCESSORS. This Agreement shall inure to the benefit of
and be binding upon the personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees of the
parties hereto. The Executive shall be entitled to select (and change, to the
extent permitted under any applicable law) a beneficiary or beneficiaries to
receive any compensation or benefit payable hereunder following the Executive's
death by giving the Company written notice thereof. In the event of the
Executive's death or a judicial determination of his incompetence, reference in
this Agreement to the Executive shall be deemed, where appropriate, to refer to
his beneficiary, estate or other legal representative.
(g) COMMUNICATIONS. For the purpose of this Agreement, notices
and all other communications provided for in this Agreement shall be in writing
and shall be deemed to have been duly given when faxed or delivered or two
business days after being mailed by United States registered or certified mail,
return receipt requested, postage prepaid, addressed (i) to the Executive at his
address then appearing in the personnel records of the Company and; (ii) to the
Company at the Company's then current headquarters; or (iii) to such other
address as either party may have furnished to the other in writing in accordance
herewith, with such notice of change of address being effective only upon
receipt.
(h) WITHHOLDING TAXES. The Company may withhold from any and
all amounts payable under this Agreement such Federal, state, local and any
other applicable taxes as may be required to be withheld pursuant to any
applicable law or regulation.
(i) SURVIVORSHIP. The respective rights and obligations of the
parties hereunder shall survive any termination of Executive's employment to the
extent necessary to assure the agreed preservation of such rights and
obligations.
6
(j) REPRESENTATIONS. Each party represents and warrants to the
other that he or it is fully authorized and empowered to enter into this
Agreement and that the performance of his or its obligations under this
Agreement will not violate any agreement between him or it and any other person
or entity.
(k) ARBITRATION. The parties agree that all disputes arising
under or in connection with this Agreement, and any and all claims by the
Executive relating to his employment with the Company, including any claims of
discrimination arising under Title VII of the Civil Rights Act of 1964, as
amended, the Age Discrimination in Employment Act, the Americans with
Disabilities Act or any similar federal, state or local law will be submitted to
arbitration in the County and State of New York to the American Arbitration
Association ("AAA") under its rules then prevailing for the type of claim in
issue. The parties each hereby specifically submit to the personal jurisdiction
of any federal or state court located in the County of St. Louis and the State
of Missouri for any such action and further agree that service of process may be
made within or without the State of Missouri by giving notice in the manner
provided herein.
In any action or proceeding relating to this Agreement, the
parties agree that no damages other than compensatory damages shall be sought or
claimed by either party and each party waives any claim, right or entitlement to
punitive, exemplary, statutory or consequential damages, or any other damages,
and each relevant arbitration panel is specifically divested of any power to
award any damages in the nature of punitive, exemplary, statutory or
consequential damages, or any other damages of any kind or nature in excess of
compensatory damages.
(l) FEES AND EXPENSES. In the event of a dispute by the
Company or Executive as to the validity or enforceability of, or liability
under, any provision of this Agreement and with respect to any claims arising in
connection with Executive's employment with the Company, each party shall pay
its own legal fees and expenses incurred in connection with such dispute or
claim; provided, however, and notwithstanding the foregoing, in the event of a
breach of this Agreement by the Company at any time after a Change of Control,
whether or not litigation is commenced, then the Company shall pay to Executive,
in addition to any damages incurred by Executive, the costs and expenses
incurred by Executive in connection with any such breach (including, without
limitation, all court costs and reasonable attorneys' fees and costs).
(m) COUNTERPARTS. This Agreement may be signed in
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
(n) HEADINGS. The headings of the sections contained in
this Agreement are for convenience only and shall not be deemed to control
or affect the meaning or construction of any provision of this Agreement.
Any reference to the Executive in the masculine gender herein is for
convenience and is not intended to express any preference by the Company for
executives of any gender.
7
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
___________________________________________
Xxxxxxx X. Xxxxxxxx
Executive
BRAND SERVICES, INC.
By: _______________________________________
Name: Xxxxx Xxxxx
Title: Chairman of the Board of Directors
8
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of April 1, 2001, by and between Brand
Services, Inc., a Delaware Corporation (the "Company") and Xxxxxxx X. Xxxxxxx
("Executive").
WHEREAS, the Company employs Executive as a Vice President,
Administration; and
WHEREAS, the Company and Executive desire to continue the Executive's
employment by the Company and to enter into an agreement (the "Agreement")
embodying certain terms of Executive's future employment;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the parties
agree as follows:
1. AGREEMENT TERM. Executive's continued employment by the Company
shall commence on April 1, 2001, and shall, unless extended as set forth below,
terminate on March 31, 2003 (the "Expiration Date"). Executive's employment
shall be automatically extended on a year to year basis following the Expiration
Date, unless a written notice to terminate is given by the Company to Executive
not less than thirty (30), nor more than sixty (60), days prior to the scheduled
expiration date. Upon the occurrence of a change of control of more than fifty
percent (50%) of the common stock of the Company or its parent corporation DLJ
Brand Holdings, Inc., a Delaware corporation (other than through a sale into the
public markets) (hereinafter referred to as a "Change of Control"), the
Expiration Date shall be automatically extended through and including the second
anniversary of the effective date as of which such Change of Control is
consummated, and thereafter may be further extended on a year to year basis in
the manner set forth in the preceding sentence. The period commencing as of
April 1, 2001, and ending on the Expiration Date, as the same may be extended
from time to time hereunder, is hereinafter referred to as the "Employment
Term". Notwithstanding the foregoing, the Employment Term shall terminate in any
and all events upon the termination of Executive's employment hereunder as
hereinafter provided.
2. POSITIONS. During the Employment Term, executive shall serve as Vice
President, Administration. Executive shall report directly to the President and
Chief Executive Officer of the Company (the "CEO") and shall have such duties
and authority commensurate with such position as shall be determined from time
to time by the CEO. Executive shall devote substantially all of his business
time and best efforts to the performance of his duties hereunder and shall not
engage in any other business, profession or occupation for compensation or
otherwise.
3. BASE SALARY. During the Employment Term, the Company shall pay
Executive a base salary (the "Base Salary") at the annual rate of not less than
$163,152, payable in arrears, in accordance with the usual payment practices of
the Company. Executive's Base Salary shall be subject to periodic review by the
CEO and the Compensation Committee of the Board of Directors, not less
frequently than annually, beginning January 1, 2002.
4. BONUS.
(a) With respect to each fiscal year in the Employment Term,
Executive shall be eligible for a bonus of up to 120% of his Base Salary (the
"Annual Bonus") to be determined annually in accordance with the Company's
annual bonus plan, as earned through the achievement of certain profitability
and performance objectives which are annually developed by the CEO and as
reviewed and approved by the Compensation Committee of the Board of Directors
(the "Bonus Plan").
(b) Any Bonus payable hereunder shall be paid at or about the
same time bonuses are paid to the Company's other senior executives and, in the
case of the Annual Bonus, in accordance with the terms of the Bonus Plan.
5. EMPLOYEE BENEFITS. During the Employment Term, Executive shall be
entitled to participate on a basis no less favorable than other senior
executives of the Company in all retirement, welfare benefit, incentive
compensation, perquisite and other plans and arrangements of the Company
applicable to senior executives of the Company, as in effect from time to time.
6. BUSINESS EXPENSES. During the Employment Term, the Company shall
reimburse such of Executive's travel, entertainment and other business expenses
as are reasonably and necessarily incurred by Executive during the Employment
Term in the performance of his duties hereunder, in accordance with the
Company's policies as in effect from time to time.
7. TERMINATION. The Employment Term may be terminated prior to its
scheduled expiration for any of the reasons set forth in this Section 7 or
Section 8. Upon a termination or expiration of the Employment Term, Executive
shall be entitled to the payments, if any, described in this Section 7 or
Section 8, whichever is applicable.
(a) FOR CAUSE BY THE COMPANY, OR BY EXECUTIVE FOR ANY REASON.
The Employment Term may be terminated prior to its scheduled expiration by the
Company for Cause (as defined below). In addition, the Employment Term may be
terminated prior to its scheduled expiration by Executive for any reason. If the
Employment Term is terminated by the Company for Cause prior to its scheduled
expiration, or by Executive for any reason prior to its scheduled expiration,
then Executive shall be entitled to receive his Base Salary through the date of
termination, any Bonus that has been earned in accordance with Section 4 for a
prior fiscal year but not yet paid and any unreimbursed business expenses,
payable promptly following the later of the date of such termination and the
date on which the appropriate documentation is provided. All other benefits
following termination of the Employment Term pursuant to this Section 7(a) shall
be determined in accordance with the plans, policies and practices of the
Company.
(b) DEATH OR DISABILITY. The Employment Term shall terminate
prior to its scheduled expiration upon Executive's death or, at the Company's
election, if Executive incurs a Disability (as hereinafter defined). If the
Employment Term is terminated prior to its scheduled expiration by reason of
Executive's death or, at the Company's election, if Executive incurs a
Disability, Executive's estate or, in the case of Executive's Disability,
Executive (or such other person duly appointed by a court of competent
jurisdiction to manage Executive's affairs) shall receive (i) the amounts
described under Section 7(a), and subject to Executive's continued compliance
with the covenants set forth in Section 9 in the event of Executive's
Disability, (ii) continued payment of Base Salary through the first anniversary
of the date of death or the effective date as of which Executive incurs a
Disability.
All other benefits following termination of the Employment
Term pursuant to this Section 7(b) shall be determined in accordance with the
plans, policies and practices of the Company.
(c) BY THE COMPANY WITHOUT CAUSE. The Employment Term may be
terminated prior to its scheduled expiration by the Company without Cause. If
the Employment
2
Term is terminated prior to its scheduled expiration by the Company without
Cause, then subject to Executive's continued compliance with the covenants set
forth in Section 9, Executive shall receive (i) the amounts described under
Section 7(a); (ii) continued payment of Base Salary through the last day of the
24th month following the date of termination (the "Severance Period"); (iii)
continued coverage under the Company's welfare benefit arrangements as in effect
from time to time through the earlier of (A) the end of the Severance Period,
and (B) such time as Executive is eligible to receive comparable welfare
benefits from a subsequent employer. At the Executive's sole discretion, a lump
sum amount equal to 12 months of annual Base Salary may be paid to the Executive
commencing with the first day of the 13th month of the Severance Period in lieu
of monthly payments remaining under the Severance Period. All other benefits
following termination of the Employment Term pursuant to this Section 7(c) shall
be determined in accordance with the plans, policies and practices of the
Company.
(d) UPON SCHEDULED EXPIRATION. The Employment Term shall
expire on the Expiration Date (after giving effect to any extensions set forth
in Section 1 hereof). In the event the Employment Term expires, then Executive
shall only be entitled to receive the amounts described in Section 7(a) above.
(e) DEFINITIONS. For purposes of this Section 7, the following
terms shall have the following meanings:
(i) "Cause" shall mean:
(A) Executive's willful and continued
failure substantially to perform his duties under the
Agreement (other than as a result of total or partial
incapacity due to physical or mental illness);
(B) An act or acts on Executive's part
constituting a felony under the laws of the United
States or any other state thereof or any other
jurisdiction in which the Company conducts business;
(C) Executive's being under the influence of
illegal drugs or alcohol while performing his duties
hereunder;
(D) Any other act or omission which is
materially injurious to the financial condition or
business reputation of the Company or any of its
affiliates; or
(E) Executive's breach of the provisions of
Section 10.
For purposes of this definition, no act or failure to act
shall be deemed "willful" unless effected by Executive not in good
faith and without a reasonable belief that such action or failure to
act was in or not opposed to the Company's best interests.
(ii) "Disability" shall mean Executive's
inability, as a result of physical or mental illness, to perform the duties of
the position(s) specified in Section 2 for a period of 90 consecutive days or
for an aggregate of 90 days in any twelve consecutive month period. Any question
as to the existence of the Disability of Executive as to which Executive and the
Company cannot agree shall be determined in writing by a qualified independent
physician selected by the
3
Company and reasonably acceptable to Executive. The determination of Disability
made in writing to the Company and Executive shall be final and conclusive for
all purposes of the Agreement.
(f) NOTICE OF TERMINATION. Any purported termination of the
Employment Term prior to its scheduled expiration by the Company or by Executive
shall be communicated by written notice of termination to the other party
hereto. For purposes of this Agreement, a "Notice of Termination" shall mean a
notice which shall indicate the specific termination provision in this Agreement
relied upon and shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination under the provision so indicated.
(g) RELEASE. Any payments by the Company to Executive under
this Section 7 or Section 8 below or in connection with any dispute arising
under or in connection with this Agreement or relating to Executive's employment
with the Company (including payments pursuant to arbitration as provided for in
Section 11(k) hereof) will be contingent upon the execution by Executive of a
release of any claims Executive may have against the Company, its affiliates or
any successor to the Company, such release to be in a form satisfactory to the
Company in its sole discretion.
8. CHANGE OF TITLE, JOB RESPONSIBILITIES, BASE SALARY AND/OR BONUS
OPPORTUNITY. Notwithstanding the provisions of Section 7(a) to the contrary,
from and after the occurrence of a Change of Control with respect to the
Company, if Executive's title and/or job responsibilities are changed from those
described in Section 2 of this Agreement, or if Executive's base salary is
reduced or if Executive's opportunity to earn an annual bonus up to 120% of base
salary as set forth in Section 4 is eliminated, Executive shall have the option
to terminate his employment with the Company and, subject to Executive's
continued compliance with the covenants set forth in Section 9, to receive the
amounts and benefits set forth in Section 7(c) of this Agreement, at the time
and for the duration more particularly set forth therein.
9. NON-COMPETITION/CONFIDENTIAL INFORMATION.
(a) Executive acknowledges and recognizes the highly
competitive nature of the businesses of the Company and its affiliates and
accordingly agrees that during the Employment Term and through the later of the
Severance Period or twelve (12) months following the date of termination of
employment:
(i) Executive will not directly or indirectly engage
in any business which is in competition with any line of business
conducted by the Company or its affiliates (including without
limitation by performing or soliciting the performance of services for
any person who is a customer or client of the Company or any of its
affiliates) whether such engagement is as an officer, director,
proprietor, employee, partner, investor (other than as holder of less
than 1% of the outstanding capital stock of a publicly traded
corporation), consultant, advisor, agent, sales representative or other
participant, in any geographic area in which the Company or any of its
affiliates conducted any such competing line of business.
(ii) Executive will not directly or indirectly assist
others in engaging in any of the activities in which Executive is
prohibited from engaging in by clause (i) above.
4
(b) Executive will not directly or indirectly induce any
employee of the Company or any of its affiliates to engage in any activity in
which Executive is prohibited to engage by paragraph (a) above or to terminate
his employment with the Company or any of its affiliates, and will not directly
or indirectly employ or offer employment to any person who was employed by the
Company or any of its affiliates unless such person shall have ceased to be
employed by the Company or any of its affiliates for a period of at least 12
months.
(c) Executive will not at any time (whether during or after
his employment with the Company) disclose or use for his own benefit or purposes
or the benefit or purposes of any other person, firm, partnership, joint
venture, association, corporation or other business organization, entity or
enterprise other than the Company and any of its subsidiaries or affiliates, any
trade secrets, information, data, or other confidential information relating to
customers, development programs, costs, marketing, trading, investment, sales
activities, promotion, credit and financial data, manufacturing processes,
financing methods, plans, or the business and affairs of the Company generally
or of any subsidiary or affiliate of the Company, provided that the foregoing
shall not apply to information which is not unique to the Company or which is
generally known to the industry or the public other than as a result of
Executive's breach of this covenant. Executive agrees that upon termination of
his employment with the Company for any reason, he will return to the Company
immediately all memoranda, books, papers, plans, information, letters and other
data, and all copies thereof or therefrom, in any way relating to the business
of the Company and its affiliates, except that he may retain personal notes,
notebooks and diaries. Executive further agrees that he will not retain or use
for his account at any time any trade names, trademark or other proprietary
business designation used or owned in connection with the business of the
Company or its affiliates.
10. SPECIFIC PERFORMANCE AND OTHER REMEDIES. Executive acknowledges and
agrees that the Company has no adequate remedy at law for a breach or threatened
breach of any of the provisions of Section 9 and, in recognition of this fact,
Executive agrees that, in the event of such a breach or threatened breach, in
addition to any remedies at law, the Company, without posting any bond and
without notice to the Executive, shall be entitled to obtain equitable relief in
the form of specific performance, temporary restraining order, temporary or
permanent injunction or any other equitable remedy which may then be available.
Nothing in this Agreement shall be construed as prohibiting the Company from
pursuing any other remedies at law or in equity that it may have or any other
rights that it may have under any other agreement.
11. MISCELLANEOUS.
(a) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Missouri without reference
to principles of conflict of laws.
(b) ENTIRE AGREEMENT/AMENDMENTS. This Agreement contains the
entire understanding of the parties with respect to the subject matter hereof
and supersedes any prior agreements between the Company and Executive. There are
no restrictions, agreements, promises, warranties, covenants or undertakings
between the parties with respect to the subject matter herein other than those
expressly set forth herein and therein. No provision in this Agreement may be
amended unless such amendment is agreed to in writing.
(c) NO WAIVER. The failure of a party to insist upon strict
adherence to any term of this Agreement on any occasion shall not be considered
a waiver of such party's rights or
5
deprive such party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement. No waiver by either party of any
breach by the other party of any condition or provision contained in this
Agreement to be performed by such other party shall be deemed a waiver of a
similar or dissimilar condition or provision at the same or any prior or
subsequent time. Any waiver must be in writing and signed by the Executive or
the Company, as the case may be.
(d) SEVERABILITY. It is expressly understood and agreed that
although Executive and the Company consider the restrictions contained in
Section 9 to be reasonable, if a final judicial determination is made by a court
of competent jurisdiction that the time or territory restriction in Section 9 or
any other restriction contained in Section 9 is an unenforceable restriction
against Executive, such provision shall not be rendered void but shall be deemed
amended to apply to such maximum time and territory, if applicable, or otherwise
to such maximum extent as such court may judicially determine or indicate to be
enforceable. Alternatively, if any court of competent jurisdiction finds that
any restriction contained in Section 9 is unenforceable, and such restriction
cannot be amended so as to make it enforceable, such finding shall not affect
the enforceability of any of the other restrictions contained herein. In the
event that any one or more of the other provisions of this Agreement shall be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions of this Agreement shall not be
affected thereby.
(e) ASSIGNMENT. This Agreement shall not be assignable by
either party without the consent of the other party.
(f) SUCCESSORS. This Agreement shall inure to the benefit of
and be binding upon the personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees of the
parties hereto. The Executive shall be entitled to select (and change, to the
extent permitted under any applicable law) a beneficiary or beneficiaries to
receive any compensation or benefit payable hereunder following the Executive's
death by giving the Company written notice thereof. In the event of the
Executive's death or a judicial determination of his incompetence, reference in
this Agreement to the Executive shall be deemed, where appropriate, to refer to
his beneficiary, estate or other legal representative.
(g) COMMUNICATIONS. For the purpose of this Agreement, notices
and all other communications provided for in this Agreement shall be in writing
and shall be deemed to have been duly given when faxed or delivered or two
business days after being mailed by United States registered or certified mail,
return receipt requested, postage prepaid, addressed (i) to the Executive at his
address then appearing in the personnel records of the Company and; (ii) to the
Company at the Company's then current headquarters; or (iii) to such other
address as either party may have furnished to the other in writing in accordance
herewith, with such notice of change of address being effective only upon
receipt.
(h) WITHHOLDING TAXES. The Company may withhold from any and
all amounts payable under this Agreement such Federal, state, local and any
other applicable taxes as may be required to be withheld pursuant to any
applicable law or regulation.
(i) SURVIVORSHIP. The respective rights and obligations of the
parties hereunder shall survive any termination of Executive's employment to the
extent necessary to assure the agreed preservation of such rights and
obligations.
6
(j) REPRESENTATIONS. Each party represents and warrants to the
other that he or it is fully authorized and empowered to enter into this
Agreement and that the performance of his or its obligations under this
Agreement will not violate any agreement between him or it and any other person
or entity.
(k) ARBITRATION. The parties agree that all disputes arising
under or in connection with this Agreement, and any and all claims by the
Executive relating to his employment with the Company, including any claims of
discrimination arising under Title VII of the Civil Rights Act of 1964, as
amended, the Age Discrimination in Employment Act, the Americans with
Disabilities Act or any similar federal, state or local law will be submitted to
arbitration in the County and State of New York to the American Arbitration
Association ("AAA") under its rules then prevailing for the type of claim in
issue. The parties each hereby specifically submit to the personal jurisdiction
of any federal or state court located in the County of St. Louis and the State
of Missouri for any such action and further agree that service of process may be
made within or without the State of Missouri by giving notice in the manner
provided herein.
In any action or proceeding relating to this Agreement, the
parties agree that no damages other than compensatory damages shall be sought or
claimed by either party and each party waives any claim, right or entitlement to
punitive, exemplary, statutory or consequential damages, or any other damages,
and each relevant arbitration panel is specifically divested of any power to
award any damages in the nature of punitive, exemplary, statutory or
consequential damages, or any other damages of any kind or nature in excess of
compensatory damages.
(l) FEES AND EXPENSES. In the event of a dispute by the
Company or Executive as to the validity or enforceability of, or liability
under, any provision of this Agreement and with respect to any claims arising in
connection with Executive's employment with the Company, each party shall pay
its own legal fees and expenses incurred in connection with such dispute or
claim; provided, however, and notwithstanding the foregoing, in the event of a
breach of this Agreement by the Company at any time after a Change of Control,
whether or not litigation is commenced, then the Company shall pay to Executive,
in addition to any damages incurred by Executive, the costs and expenses
incurred by Executive in connection with any such breach (including, without
limitation, all court costs and reasonable attorneys' fees and costs).
(m) COUNTERPARTS. This Agreement may be signed in
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
(n) HEADINGS. The headings of the sections contained in
this Agreement are for convenience only and shall not be deemed to control or
affect the meaning or construction of any provision of this Agreement. Any
reference to the Executive in the masculine gender herein is for convenience and
is not intended to express any preference by the Company for executives of any
gender.
7
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
__________________________________________
Xxxxxxx X. Xxxxxxx
Executive
BRAND SERVICES, INC.
By: ______________________________________
Name: Xxxxx Xxxxx
Title: Chairman of the Board of Directors
8
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of April 1, 2001, by and between Brand
Services, Inc., a Delaware Corporation (the "Company") and Xxx X. Xxxxxx
("Executive").
WHEREAS, the Company employs Executive as a Vice President, Resource
Management; and
WHEREAS, the Company and Executive desire to continue the Executive's
employment by the Company and to enter into an agreement (the "Agreement")
embodying certain terms of Executive's future employment;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the parties
agree as follows:
1. AGREEMENT TERM. Executive's continued employment by the Company
shall commence on April 1, 2001, and shall, unless extended as set forth below,
terminate on March 31, 2003 (the "Expiration Date"). Executive's employment
shall be automatically extended on a year to year basis following the Expiration
Date, unless a written notice to terminate is given by the Company to Executive
not less than thirty (30), nor more than sixty (60), days prior to the scheduled
expiration date. Upon the occurrence of a change of control of more than fifty
percent (50%) of the common stock of the Company or its parent corporation DLJ
Brand Holdings, Inc., a Delaware corporation (other than through a sale into the
public markets) (hereinafter referred to as a "Change of Control"), the
Expiration Date shall be automatically extended through and including the second
anniversary of the effective date as of which such Change of Control is
consummated, and thereafter may be further extended on a year to year basis in
the manner set forth in the preceding sentence. The period commencing as of
April 1, 2001, and ending on the Expiration Date, as the same may be extended
from time to time hereunder, is hereinafter referred to as the "Employment
Term". Notwithstanding the foregoing, the Employment Term shall terminate in any
and all events upon the termination of Executive's employment hereunder as
hereinafter provided.
2. POSITIONS. During the Employment Term, executive shall serve as Vice
President, Resource Management. Executive shall report directly to the President
and Chief Executive Officer of the Company (the "CEO") and shall have such
duties and authority commensurate with such position as shall be determined from
time to time by the CEO. Executive shall devote substantially all of his
business time and best efforts to the performance of his duties hereunder and
shall not engage in any other business, profession or occupation for
compensation or otherwise.
3. BASE SALARY. During the Employment Term, the Company shall pay
Executive a base salary (the "Base Salary") at the annual rate of not less than
$153,545, payable in arrears, in accordance with the usual payment practices of
the Company. Executive's Base Salary shall be subject to periodic review by the
CEO and the Compensation Committee of the Board of Directors, not less
frequently than annually, beginning January 1, 2002.
4. BONUS.
(a) With respect to each fiscal year in the Employment Term,
Executive shall be eligible for a bonus of up to 120% of his Base Salary (the
"Annual Bonus") to be determined annually in accordance with the Company's
annual bonus plan, as earned through the achievement of certain profitability
and performance objectives which are annually developed by the CEO and
as reviewed and approved by the Compensation Committee of the Board of Directors
(the "Bonus Plan").
(b) Any Bonus payable hereunder shall be paid at or about the
same time bonuses are paid to the Company's other senior executives and, in the
case of the Annual Bonus, in accordance with the terms of the Bonus Plan.
5. EMPLOYEE BENEFITS. During the Employment Term, Executive shall be
entitled to participate on a basis no less favorable than other senior
executives of the Company in all retirement, welfare benefit, incentive
compensation, perquisite and other plans and arrangements of the Company
applicable to senior executives of the Company, as in effect from time to time.
6. BUSINESS EXPENSES. During the Employment Term, the Company shall
reimburse such of Executive's travel, entertainment and other business expenses
as are reasonably and necessarily incurred by Executive during the Employment
Term in the performance of his duties hereunder, in accordance with the
Company's policies as in effect from time to time.
7. TERMINATION. The Employment Term may be terminated prior to its
scheduled expiration for any of the reasons set forth in this Section 7 or
Section 8. Upon a termination or expiration of the Employment Term, Executive
shall be entitled to the payments, if any, described in this Section 7 or
Section 8, whichever is applicable.
(a) FOR CAUSE BY THE COMPANY, OR BY EXECUTIVE FOR ANY REASON.
The Employment Term may be terminated prior to its scheduled expiration by the
Company for Cause (as defined below). In addition, the Employment Term may be
terminated prior to its scheduled expiration by Executive for any reason. If the
Employment Term is terminated by the Company for Cause prior to its scheduled
expiration, or by Executive for any reason prior to its scheduled expiration,
then Executive shall be entitled to receive his Base Salary through the date of
termination, any Bonus that has been earned in accordance with Section 4 for a
prior fiscal year but not yet paid and any unreimbursed business expenses,
payable promptly following the later of the date of such termination and the
date on which the appropriate documentation is provided. All other benefits
following termination of the Employment Term pursuant to this Section 7(a) shall
be determined in accordance with the plans, policies and practices of the
Company.
(b) DEATH OR DISABILITY. The Employment Term shall terminate
prior to its scheduled expiration upon Executive's death or, at the Company's
election, if Executive incurs a Disability (as hereinafter defined). If the
Employment Term is terminated prior to its scheduled expiration by reason of
Executive's death or, at the Company's election, if Executive incurs a
Disability, Executive's estate or, in the case of Executive's Disability,
Executive (or such other person duly appointed by a court of competent
jurisdiction to manage Executive's affairs) shall receive (i) the amounts
described under Section 7(a), and subject to Executive's continued compliance
with the covenants set forth in Section 9 in the event of Executive's
Disability, (ii) continued payment of Base Salary through the first anniversary
of the date of death or the effective date as of which Executive incurs a
Disability.
All other benefits following termination of the Employment
Term pursuant to this Section 7(b) shall be determined in accordance with the
plans, policies and practices of the Company.
2
(c) BY THE COMPANY WITHOUT CAUSE. The Employment Term may be
terminated prior to its scheduled expiration by the Company without Cause. If
the Employment Term is terminated prior to its scheduled expiration by the
Company without Cause, then subject to Executive's continued compliance with the
covenants set forth in Section 9, Executive shall receive (i) the amounts
described under Section 7(a); (ii) continued payment of Base Salary through the
last day of the 24th month following the date of termination (the "Severance
Period"); (iii) continued coverage under the Company's welfare benefit
arrangements as in effect from time to time through the earlier of (A) the end
of the Severance Period, and (B) such time as Executive is eligible to receive
comparable welfare benefits from a subsequent employer. At the Executive's sole
discretion, a lump sum amount equal to 12 months of annual Base Salary may be
paid to the Executive commencing with the first day of the 13th month of the
Severance Period in lieu of monthly payments remaining under the Severance
Period. All other benefits following termination of the Employment Term pursuant
to this Section 7(c) shall be determined in accordance with the plans, policies
and practices of the Company.
(d) UPON SCHEDULED EXPIRATION. The Employment Term shall
expire on the Expiration Date (after giving effect to any extensions set forth
in Section 1 hereof). In the event the Employment Term expires, then Executive
shall only be entitled to receive the amounts described in Section 7(a) above.
(e) DEFINITIONS. For purposes of this Section 7, the following
terms shall have the following meanings:
(i) "Cause" shall mean:
(A) Executive's willful and continued
failure substantially to perform his duties under the
Agreement (other than as a result of total or partial
incapacity due to physical or mental illness);
(B) An act or acts on Executive's part
constituting a felony under the laws of the United
States or any other state thereof or any other
jurisdiction in which the Company conducts business;
(C) Executive's being under the influence of
illegal drugs or alcohol while performing his duties
hereunder;
(D) Any other act or omission which is
materially injurious to the financial condition or
business reputation of the Company or any of its
affiliates; or
(E) Executive's breach of the provisions of
Section 10.
For purposes of this definition, no act or failure to act
shall be deemed "willful" unless effected by Executive not in good
faith and without a reasonable belief that such action or failure to
act was in or not opposed to the Company's best interests.
(ii) "Disability" shall mean Executive's inability,
as a result of physical or mental illness, to perform the duties of the
position(s) specified in Section 2 for a period of 90 consecutive days or for an
aggregate of 90 days in any twelve consecutive month period. Any
3
question as to the existence of the Disability of Executive as to which
Executive and the Company cannot agree shall be determined in writing by a
qualified independent physician selected by the Company and reasonably
acceptable to Executive. The determination of Disability made in writing to the
Company and Executive shall be final and conclusive for all purposes of the
Agreement.
(f) NOTICE OF TERMINATION. Any purported termination of the
Employment Term prior to its scheduled expiration by the Company or by Executive
shall be communicated by written notice of termination to the other party
hereto. For purposes of this Agreement, a "Notice of Termination" shall mean a
notice which shall indicate the specific termination provision in this Agreement
relied upon and shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination under the provision so indicated.
(g) RELEASE. Any payments by the Company to Executive under
this Section 7 or Section 8 below or in connection with any dispute arising
under or in connection with this Agreement or relating to Executive's employment
with the Company (including payments pursuant to arbitration as provided for in
Section 11(k) hereof) will be contingent upon the execution by Executive of a
release of any claims Executive may have against the Company, its affiliates or
any successor to the Company, such release to be in a form satisfactory to the
Company in its sole discretion.
8. CHANGE OF TITLE, JOB RESPONSIBILITIES, BASE SALARY AND/OR BONUS
OPPORTUNITY. Notwithstanding the provisions of Section 7(a) to the contrary,
from and after the occurrence of a Change of Control with respect to the
Company, if Executive's title and/or job responsibilities are changed from those
described in Section 2 of this Agreement, or if Executive's base salary is
reduced or if Executive's opportunity to earn an annual bonus up to 120% of base
salary as set forth in Section 4 is eliminated, Executive shall have the option
to terminate his employment with the Company and, subject to Executive's
continued compliance with the covenants set forth in Section 9, to receive the
amounts and benefits set forth in Section 7(c) of this Agreement, at the time
and for the duration more particularly set forth therein.
9. NON-COMPETITION/CONFIDENTIAL INFORMATION.
(a) Executive acknowledges and recognizes the highly
competitive nature of the businesses of the Company and its affiliates and
accordingly agrees that during the Employment Term and through the later of the
Severance Period or twelve (12) months following the date of termination of
employment:
(i) Executive will not directly or indirectly engage
in any business which is in competition with any line of business
conducted by the Company or its affiliates (including without
limitation by performing or soliciting the performance of services for
any person who is a customer or client of the Company or any of its
affiliates) whether such engagement is as an officer, director,
proprietor, employee, partner, investor (other than as holder of less
than 1% of the outstanding capital stock of a publicly traded
corporation), consultant, advisor, agent, sales representative or other
participant, in any geographic area in which the Company or any of its
affiliates conducted any such competing line of business.
(ii) Executive will not directly or indirectly assist
others in engaging in any of the activities in which Executive is
prohibited from engaging in by clause (i) above.
4
(b) Executive will not directly or indirectly induce any
employee of the Company or any of its affiliates to engage in any activity in
which Executive is prohibited to engage by paragraph (a) above or to terminate
his employment with the Company or any of its affiliates, and will not directly
or indirectly employ or offer employment to any person who was employed by the
Company or any of its affiliates unless such person shall have ceased to be
employed by the Company or any of its affiliates for a period of at least 12
months.
(c) Executive will not at any time (whether during or after
his employment with the Company) disclose or use for his own benefit or purposes
or the benefit or purposes of any other person, firm, partnership, joint
venture, association, corporation or other business organization, entity or
enterprise other than the Company and any of its subsidiaries or affiliates, any
trade secrets, information, data, or other confidential information relating to
customers, development programs, costs, marketing, trading, investment, sales
activities, promotion, credit and financial data, manufacturing processes,
financing methods, plans, or the business and affairs of the Company generally
or of any subsidiary or affiliate of the Company, provided that the foregoing
shall not apply to information which is not unique to the Company or which is
generally known to the industry or the public other than as a result of
Executive's breach of this covenant. Executive agrees that upon termination of
his employment with the Company for any reason, he will return to the Company
immediately all memoranda, books, papers, plans, information, letters and other
data, and all copies thereof or therefrom, in any way relating to the business
of the Company and its affiliates, except that he may retain personal notes,
notebooks and diaries. Executive further agrees that he will not retain or use
for his account at any time any trade names, trademark or other proprietary
business designation used or owned in connection with the business of the
Company or its affiliates.
10. SPECIFIC PERFORMANCE AND OTHER REMEDIES. Executive acknowledges and
agrees that the Company has no adequate remedy at law for a breach or threatened
breach of any of the provisions of Section 9 and, in recognition of this fact,
Executive agrees that, in the event of such a breach or threatened breach, in
addition to any remedies at law, the Company, without posting any bond and
without notice to the Executive, shall be entitled to obtain equitable relief in
the form of specific performance, temporary restraining order, temporary or
permanent injunction or any other equitable remedy which may then be available.
Nothing in this Agreement shall be construed as prohibiting the Company from
pursuing any other remedies at law or in equity that it may have or any other
rights that it may have under any other agreement.
11. MISCELLANEOUS.
(a) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Missouri without reference
to principles of conflict of laws.
(b) ENTIRE AGREEMENT/AMENDMENTS. This Agreement contains the
entire understanding of the parties with respect to the subject matter hereof
and supersedes any prior agreements between the Company and Executive. There are
no restrictions, agreements, promises, warranties, covenants or undertakings
between the parties with respect to the subject matter herein other than those
expressly set forth herein and therein. No provision in this Agreement may be
amended unless such amendment is agreed to in writing.
5
(c) NO WAIVER. The failure of a party to insist upon strict
adherence to any term of this Agreement on any occasion shall not be considered
a waiver of such party's rights or deprive such party of the right thereafter to
insist upon strict adherence to that term or any other term of this Agreement.
No waiver by either party of any breach by the other party of any condition or
provision contained in this Agreement to be performed by such other party shall
be deemed a waiver of a similar or dissimilar condition or provision at the same
or any prior or subsequent time. Any waiver must be in writing and signed by the
Executive or the Company, as the case may be.
(d) SEVERABILITY. It is expressly understood and agreed that
although Executive and the Company consider the restrictions contained in
Section 9 to be reasonable, if a final judicial determination is made by a court
of competent jurisdiction that the time or territory restriction in Section 9 or
any other restriction contained in Section 9 is an unenforceable restriction
against Executive, such provision shall not be rendered void but shall be deemed
amended to apply to such maximum time and territory, if applicable, or otherwise
to such maximum extent as such court may judicially determine or indicate to be
enforceable. Alternatively, if any court of competent jurisdiction finds that
any restriction contained in Section 9 is unenforceable, and such restriction
cannot be amended so as to make it enforceable, such finding shall not affect
the enforceability of any of the other restrictions contained herein. In the
event that any one or more of the other provisions of this Agreement shall be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions of this Agreement shall not be
affected thereby.
(e) ASSIGNMENT. This Agreement shall not be assignable by
either party without the consent of the other party.
(f) SUCCESSORS. This Agreement shall inure to the benefit of
and be binding upon the personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees of the
parties hereto. The Executive shall be entitled to select (and change, to the
extent permitted under any applicable law) a beneficiary or beneficiaries to
receive any compensation or benefit payable hereunder following the Executive's
death by giving the Company written notice thereof. In the event of the
Executive's death or a judicial determination of his incompetence, reference in
this Agreement to the Executive shall be deemed, where appropriate, to refer to
his beneficiary, estate or other legal representative.
(g) COMMUNICATIONS. For the purpose of this Agreement, notices
and all other communications provided for in this Agreement shall be in writing
and shall be deemed to have been duly given when faxed or delivered or two
business days after being mailed by United States registered or certified mail,
return receipt requested, postage prepaid, addressed (i) to the Executive at his
address then appearing in the personnel records of the Company and; (ii) to the
Company at the Company's then current headquarters; or (iii) to such other
address as either party may have furnished to the other in writing in accordance
herewith, with such notice of change of address being effective only upon
receipt.
(h) WITHHOLDING TAXES. The Company may withhold from any and
all amounts payable under this Agreement such Federal, state, local and any
other applicable taxes as may be required to be withheld pursuant to any
applicable law or regulation.
6
(i) SURVIVORSHIP. The respective rights and obligations of the
parties hereunder shall survive any termination of Executive's employment to the
extent necessary to assure the agreed preservation of such rights and
obligations.
(j) REPRESENTATIONS. Each party represents and warrants to the
other that he or it is fully authorized and empowered to enter into this
Agreement and that the performance of his or its obligations under this
Agreement will not violate any agreement between him or it and any other person
or entity.
(k) ARBITRATION. The parties agree that all disputes arising
under or in connection with this Agreement, and any and all claims by the
Executive relating to his employment with the Company, including any claims of
discrimination arising under Title VII of the Civil Rights Act of 1964, as
amended, the Age Discrimination in Employment Act, the Americans with
Disabilities Act or any similar federal, state or local law will be submitted to
arbitration in the County and State of New York to the American Arbitration
Association ("AAA") under its rules then prevailing for the type of claim in
issue. The parties each hereby specifically submit to the personal jurisdiction
of any federal or state court located in the County of St. Louis and the State
of Missouri for any such action and further agree that service of process may be
made within or without the State of Missouri by giving notice in the manner
provided herein.
In any action or proceeding relating to this Agreement, the
parties agree that no damages other than compensatory damages shall be sought or
claimed by either party and each party waives any claim, right or entitlement to
punitive, exemplary, statutory or consequential damages, or any other damages,
and each relevant arbitration panel is specifically divested of any power to
award any damages in the nature of punitive, exemplary, statutory or
consequential damages, or any other damages of any kind or nature in excess of
compensatory damages.
(l) FEES AND EXPENSES. In the event of a dispute by the
Company or Executive as to the validity or enforceability of, or liability
under, any provision of this Agreement and with respect to any claims arising in
connection with Executive's employment with the Company, each party shall pay
its own legal fees and expenses incurred in connection with such dispute or
claim; provided, however, and notwithstanding the foregoing, in the event of a
breach of this Agreement by the Company at any time after a Change of Control,
whether or not litigation is commenced, then the Company shall pay to Executive,
in addition to any damages incurred by Executive, the costs and expenses
incurred by Executive in connection with any such breach (including, without
limitation, all court costs and reasonable attorneys' fees and costs).
(m) COUNTERPARTS. This Agreement may be signed in
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
(n) HEADINGS. The headings of the sections contained in
this Agreement are for convenience only and shall not be deemed to control or
affect the meaning or construction of any provision of this Agreement. Any
reference to the Executive in the masculine gender herein is for convenience and
is not intended to express any preference by the Company for executives of any
gender.
7
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
__________________________________________
Xxx X. Xxxxxx
Executive
BRAND SERVICES, INC.
By: ______________________________________
Name: Xxxxx Xxxxx
Title: Chairman of the Board of Directors
8
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of January 1, 2002, by and between Brand
Services, Inc., a Delaware Corporation (the "Company") and Xxx X. Xxxxxxxxx
("Executive").
WHEREAS, the Company employs Executive as a VP, Business Development;
and
WHEREAS, the Company and Executive desire to continue the Executive's
employment by the Company and to enter into an agreement (the "Agreement")
embodying certain terms of Executive's future employment;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the parties
agree as follows:
1. AGREEMENT TERM. Executive's continued employment by the Company
shall commence on January 1, 2002, and shall, unless extended as set forth
below, terminate on March 31, 2003 (the "Expiration Date"). Executive's
employment shall be automatically extended on a year to year basis following the
Expiration Date, unless a written notice to terminate is given by the Company to
Executive not less than thirty (30), nor more than sixty (60), days prior to the
scheduled expiration date. Upon the occurrence of a change of control of more
than fifty percent (50%) of the common stock of the Company or its parent
corporation DLJ Brand Holdings, Inc., a Delaware corporation (other than through
a sale into the public markets) (hereinafter referred to as a "Change of
Control"), the Expiration Date shall be automatically extended through and
including the second anniversary of the effective date as of which such Change
of Control is consummated, and thereafter may be further extended on a year to
year basis in the manner set forth in the preceding sentence. The period
commencing as of January 1, 2002, and ending on the Expiration Date, as the same
may be extended from time to time hereunder, is hereinafter referred to as the
"Employment Term". Notwithstanding the foregoing, the Employment Term shall
terminate in any and all events upon the termination of Executive's employment
hereunder as hereinafter provided.
2. POSITIONS. During the Employment Term, executive shall serve as VP,
Business Development. Executive shall report directly to the President and Chief
Executive Officer of the Company (the "CEO") and shall have such duties and
authority commensurate with such position as shall be determined from time to
time by the CEO. Executive shall devote fifty percent (50%) of his business time
and best efforts to the performance of his duties hereunder.
3. BASE SALARY. During the Employment Term, the Company shall pay
Executive a base salary (the "Base Salary") at the annual rate of not less than
$101,368, payable in arrears, in accordance with the usual payment practices of
the Company. Executive's Base Salary shall be subject to periodic review by the
CEO and the Compensation Committee of the Board of Directors, not less
frequently than annually, beginning January 1, 2002.
4. BONUS.
(a) With respect to each fiscal year in the Employment Term,
Executive shall be eligible for a bonus of up to 120% of his Base Salary (the
"Annual Bonus") to be determined annually in accordance with the Company's
annual bonus plan, as earned through the achievement of certain profitability
and performance objectives which are annually developed by the CEO and as
reviewed and approved by the Compensation Committee of the Board of Directors
(the "Bonus Plan").
9
(b) Any Bonus payable hereunder shall be paid at or about the
same time bonuses are paid to the Company's other senior executives and, in the
case of the Annual Bonus, in accordance with the terms of the Bonus Plan.
5. EMPLOYEE BENEFITS. During the Employment Term, Executive shall be
entitled to participate on a basis no less favorable than other senior
executives of the Company in all retirement, welfare benefit, incentive
compensation, perquisite and other plans and arrangements of the Company
applicable to senior executives of the Company, as in effect from time to time.
6. BUSINESS EXPENSES. During the Employment Term, the Company shall
reimburse such of Executive's travel, entertainment and other business expenses
as are reasonably and necessarily incurred by Executive during the Employment
Term in the performance of his duties hereunder, in accordance with the
Company's policies as in effect from time to time.
7. TERMINATION. The Employment Term may be terminated prior to its
scheduled expiration for any of the reasons set forth in this Section 7 or
Section 8. Upon a termination or expiration of the Employment Term, Executive
shall be entitled to the payments, if any, described in this Section 7 or
Section 8, whichever is applicable.
(a) FOR CAUSE BY THE COMPANY, OR BY EXECUTIVE FOR ANY REASON.
The Employment Term may be terminated prior to its scheduled expiration by the
Company for Cause (as defined below). In addition, the Employment Term may be
terminated prior to its scheduled expiration by Executive for any reason. If the
Employment Term is terminated by the Company for Cause prior to its scheduled
expiration, or by Executive for any reason prior to its scheduled expiration,
then Executive shall be entitled to receive his Base Salary through the date of
termination, any Bonus that has been earned in accordance with Section 4 for a
prior fiscal year but not yet paid and any unreimbursed business expenses,
payable promptly following the later of the date of such termination and the
date on which the appropriate documentation is provided. All other benefits
following termination of the Employment Term pursuant to this Section 7(a) shall
be determined in accordance with the plans, policies and practices of the
Company.
(b) DEATH OR DISABILITY. The Employment Term shall terminate
prior to its scheduled expiration upon Executive's death or, at the Company's
election, if Executive incurs a Disability (as hereinafter defined). If the
Employment Term is terminated prior to its scheduled expiration by reason of
Executive's death or, at the Company's election, if Executive incurs a
Disability, Executive's estate or, in the case of Executive's Disability,
Executive (or such other person duly appointed by a court of competent
jurisdiction to manage Executive's affairs) shall receive (i) the amounts
described under Section 7(a), and subject to Executive's continued compliance
with the covenants set forth in Section 9 in the event of Executive's
Disability, (ii) continued payment of Base Salary through the first anniversary
of the date of death or the effective date as of which Executive incurs a
Disability.
All other benefits following termination of the Employment
Term pursuant to this Section 7(b) shall be determined in accordance with the
plans, policies and practices of the Company.
(c) BY THE COMPANY WITHOUT CAUSE. The Employment Term may be
terminated prior to its scheduled expiration by the Company without Cause. If
the Employment Term is terminated prior to its scheduled expiration by the
Company without Cause, then subject to Executive's continued compliance with the
covenants set forth in Section 9, Executive shall receive (i) the amounts
described under Section 7(a); (ii) continued payment of Base Salary through the
last day of the 24th month following
10
the date of termination (the "Severance Period"); (iii) continued coverage under
the Company's welfare benefit arrangements as in effect from time to time
through the earlier of (A) the end of the Severance Period, and (B) such time as
Executive is eligible to receive comparable welfare benefits from a subsequent
employer. At the Executive's sole discretion, a lump sum amount equal to 12
months of annual Base Salary may be paid to the Executive commencing with the
first day of the 13th month of the Severance Period in lieu of monthly payments
remaining under the Severance Period. All other benefits following termination
of the Employment Term pursuant to this Section 7(c) shall be determined in
accordance with the plans, policies and practices of the Company.
(d) UPON SCHEDULED EXPIRATION. The Employment Term shall
expire on the Expiration Date (after giving effect to any extensions set forth
in Section 1 hereof). In the event the Employment Term expires, then Executive
shall only be entitled to receive the amounts described in Section 7(a) above.
(e) DEFINITIONS. For purposes of this Section 7, the following
terms shall have the following meanings:
(i) "Cause" shall mean:
(A) Executive's willful and continued
failure substantially to perform his duties under the
Agreement (other than as a result of total or partial
incapacity due to physical or mental illness);
(B) An act or acts on Executive's part
constituting a felony under the laws of the United
States or any other state thereof or any other
jurisdiction in which the Company conducts business;
(C) Executive's being under the influence of
illegal drugs or alcohol while performing his duties
hereunder;
(D) Any other act or omission which is
materially injurious to the financial condition or
business reputation of the Company or any of its
affiliates; or
(E) Executive's breach of the provisions of
Section 10.
For purposes of this definition, no act or failure to act
shall be deemed "willful" unless effected by Executive not in good
faith and without a reasonable belief that such action or failure to
act was in or not opposed to the Company's best interests.
(ii) "Disability" shall mean Executive's inability,
as a result of physical or mental illness, to perform the duties of the
position(s) specified in Section 2 for a period of 90 consecutive days or for an
aggregate of 90 days in any twelve consecutive month period. Any question as to
the existence of the Disability of Executive as to which Executive and the
Company cannot agree shall be determined in writing by a qualified independent
physician selected by the Company and reasonably acceptable to Executive. The
determination of Disability made in writing to the Company and Executive shall
be final and conclusive for all purposes of the Agreement.
(f) NOTICE OF TERMINATION. Any purported termination of the
Employment Term prior to its scheduled expiration by the Company or by Executive
shall be communicated by written notice of termination to the other party
hereto. For purposes of this Agreement, a "Notice of Termination" shall
11
mean a notice which shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination under the provision so
indicated.
(g) RELEASE. Any payments by the Company to Executive under
this Section 7 or Section 8 below or in connection with any dispute arising
under or in connection with this Agreement or relating to Executive's employment
with the Company (including payments pursuant to arbitration as provided for in
Section 11(k) hereof) will be contingent upon the execution by Executive of a
release of any claims Executive may have against the Company, its affiliates or
any successor to the Company, such release to be in a form satisfactory to the
Company in its sole discretion.
8. CHANGE OF TITLE, JOB RESPONSIBILITIES, WORK LOCATION, BASE SALARY
AND/OR BONUS OPPORTUNITY. Notwithstanding the provisions of Section 7(a) to the
contrary, from and after the occurrence of a Change of Control with respect to
the Company, if Executive's title, job responsibilities, and/or work location
are changed from those described in Section 2 of this Agreement, or if
Executive's base salary is reduced or if Executive's opportunity to earn an
annual bonus up to 120% of base salary as set forth in Section 4 is eliminated,
Executive shall have the option to terminate his employment with the Company
and, subject to Executive's continued compliance with the covenants set forth in
Section 9, to receive the amounts and benefits set forth in Section 7(c) of this
Agreement, at the time and for the duration more particularly set forth therein.
9. NON-COMPETITION/CONFIDENTIAL INFORMATION.
(a) Executive acknowledges and recognizes the highly
competitive nature of the businesses of the Company and its affiliates and
accordingly agrees that during the Employment Term and through the later of the
Severance Period or twelve (12) months following the date of termination of
employment:
(i) Executive will not directly or indirectly engage
in any business which is in competition with any line of business
conducted by the Company or its affiliates (including without
limitation by performing or soliciting the performance of services for
any person who is a customer or client of the Company or any of its
affiliates) whether such engagement is as an officer, director,
proprietor, employee, partner, investor (other than as holder of less
than 1% of the outstanding capital stock of a publicly traded
corporation), consultant, advisor, agent, sales representative or other
participant, in any geographic area in which the Company or any of its
affiliates conducted any such competing line of business.
(ii) Executive will not directly or indirectly assist
others in engaging in any of the activities in which Executive is
prohibited from engaging in by clause (i) above.
(b) Executive will not directly or indirectly induce any
employee of the Company or any of its affiliates to engage in any activity in
which Executive is prohibited to engage by paragraph (a) above or to terminate
his employment with the Company or any of its affiliates, and will not directly
or indirectly employ or offer employment to any person who was employed by the
Company or any of its affiliates unless such person shall have ceased to be
employed by the Company or any of its affiliates for a period of at least 12
months.
(c) Executive will not at any time (whether during or after
his employment with the Company) disclose or use for his own benefit or purposes
or the benefit or purposes of any other person,
12
firm, partnership, joint venture, association, corporation or other business
organization, entity or enterprise other than the Company and any of its
subsidiaries or affiliates, any trade secrets, information, data, or other
confidential information relating to customers, development programs, costs,
marketing, trading, investment, sales activities, promotion, credit and
financial data, manufacturing processes, financing methods, plans, or the
business and affairs of the Company generally or of any subsidiary or affiliate
of the Company, provided that the foregoing shall not apply to information which
is not unique to the Company or which is generally known to the industry or the
public other than as a result of Executive's breach of this covenant. Executive
agrees that upon termination of his employment with the Company for any reason,
he will return to the Company immediately all memoranda, books, papers, plans,
information, letters and other data, and all copies thereof or therefrom, in any
way relating to the business of the Company and its affiliates, except that he
may retain personal notes, notebooks and diaries. Executive further agrees that
he will not retain or use for his account at any time any trade names, trademark
or other proprietary business designation used or owned in connection with the
business of the Company or its affiliates.
10. SPECIFIC PERFORMANCE AND OTHER REMEDIES. Executive acknowledges and
agrees that the Company has no adequate remedy at law for a breach or threatened
breach of any of the provisions of Section 9 and, in recognition of this fact,
Executive agrees that, in the event of such a breach or threatened breach, in
addition to any remedies at law, the Company, without posting any bond and
without notice to the Executive, shall be entitled to obtain equitable relief in
the form of specific performance, temporary restraining order, temporary or
permanent injunction or any other equitable remedy which may then be available.
Nothing in this Agreement shall be construed as prohibiting the Company from
pursuing any other remedies at law or in equity that it may have or any other
rights that it may have under any other agreement.
11. MISCELLANEOUS.
(a) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Missouri without reference
to principles of conflict of laws.
(b) ENTIRE AGREEMENT/AMENDMENTS. This Agreement contains the
entire understanding of the parties with respect to the subject matter hereof
and supersedes any prior agreements between the Company and Executive. There are
no restrictions, agreements, promises, warranties, covenants or undertakings
between the parties with respect to the subject matter herein other than those
expressly set forth herein and therein. No provision in this Agreement may be
amended unless such amendment is agreed to in writing.
(c) NO WAIVER. The failure of a party to insist upon strict
adherence to any term of this Agreement on any occasion shall not be considered
a waiver of such party's rights or deprive such party of the right thereafter to
insist upon strict adherence to that term or any other term of this Agreement.
No waiver by either party of any breach by the other party of any condition or
provision contained in this Agreement to be performed by such other party shall
be deemed a waiver of a similar or dissimilar condition or provision at the same
or any prior or subsequent time. Any waiver must be in writing and signed by the
Executive or the Company, as the case may be.
(d) SEVERABILITY. It is expressly understood and agreed that
although Executive and the Company consider the restrictions contained in
Section 9 to be reasonable, if a final judicial determination is made by a court
of competent jurisdiction that the time or territory restriction in Section 9 or
any other restriction contained in Section 9 is an unenforceable restriction
against Executive, such provision shall not be rendered void but shall be deemed
amended to apply to such maximum time and territory, if applicable, or otherwise
to such maximum extent as such court may judicially determine or
13
indicate to be enforceable. Alternatively, if any court of competent
jurisdiction finds that any restriction contained in Section 9 is unenforceable,
and such restriction cannot be amended so as to make it enforceable, such
finding shall not affect the enforceability of any of the other restrictions
contained herein. In the event that any one or more of the other provisions of
this Agreement shall be or become invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
of this Agreement shall not be affected thereby.
(e) ASSIGNMENT. This Agreement shall not be assignable by
either party without the consent of the other party.
(f) SUCCESSORS. This Agreement shall inure to the benefit of
and be binding upon the personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees of the
parties hereto. The Executive shall be entitled to select (and change, to the
extent permitted under any applicable law) a beneficiary or beneficiaries to
receive any compensation or benefit payable hereunder following the Executive's
death by giving the Company written notice thereof. In the event of the
Executive's death or a judicial determination of his incompetence, reference in
this Agreement to the Executive shall be deemed, where appropriate, to refer to
his beneficiary, estate or other legal representative.
(g) COMMUNICATIONS. For the purpose of this Agreement, notices
and all other communications provided for in this Agreement shall be in writing
and shall be deemed to have been duly given when faxed or delivered or two
business days after being mailed by United States registered or certified mail,
return receipt requested, postage prepaid, addressed (i) to the Executive at his
address then appearing in the personnel records of the Company and; (ii) to the
Company at the Company's then current headquarters; or (iii) to such other
address as either party may have furnished to the other in writing in accordance
herewith, with such notice of change of address being effective only upon
receipt.
(h) WITHHOLDING TAXES. The Company may withhold from any and
all amounts payable under this Agreement such Federal, state, local and any
other applicable taxes as may be required to be withheld pursuant to any
applicable law or regulation.
(i) SURVIVORSHIP. The respective rights and obligations of the
parties hereunder shall survive any termination of Executive's employment to the
extent necessary to assure the agreed preservation of such rights and
obligations.
(j) REPRESENTATIONS. Each party represents and warrants to the
other that he or it is fully authorized and empowered to enter into this
Agreement and that the performance of his or its obligations under this
Agreement will not violate any agreement between him or it and any other person
or entity.
(k) ARBITRATION. The parties agree that all disputes arising
under or in connection with this Agreement, and any and all claims by the
Executive relating to his employment with the Company, including any claims of
discrimination arising under Title VII of the Civil Rights Act of 1964, as
amended, the Age Discrimination in Employment Act, the Americans with
Disabilities Act or any similar federal, state or local law will be submitted to
arbitration in the County and State of New York to the American Arbitration
Association ("AAA") under its rules then prevailing for the type of claim in
issue. The parties each hereby specifically submit to the personal jurisdiction
of any federal or state court located in the County of St. Louis and the State
of Missouri for any such action and further agree that service of process may be
made within or without the State of Missouri by giving notice in the manner
provided herein.
14
In any action or proceeding relating to this Agreement, the
parties agree that no damages other than compensatory damages shall be sought or
claimed by either party and each party waives any claim, right or entitlement to
punitive, exemplary, statutory or consequential damages, or any other damages,
and each relevant arbitration panel is specifically divested of any power to
award any damages in the nature of punitive, exemplary, statutory or
consequential damages, or any other damages of any kind or nature in excess of
compensatory damages.
(l) FEES AND EXPENSES. In the event of a dispute by the
Company or Executive as to the validity or enforceability of, or liability
under, any provision of this Agreement and with respect to any claims arising in
connection with Executive's employment with the Company, each party shall pay
its own legal fees and expenses incurred in connection with such dispute or
claim; provided, however, and notwithstanding the foregoing, in the event of a
breach of this Agreement by the Company at any time after a Change of Control,
whether or not litigation is commenced, then the Company shall pay to Executive,
in addition to any damages incurred by Executive, the costs and expenses
incurred by Executive in connection with any such breach (including, without
limitation, all court costs and reasonable attorneys' fees and costs).
(m) COUNTERPARTS. This Agreement may be signed in
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
(n) HEADINGS. The headings of the sections contained in this
Agreement are for convenience only and shall not be deemed to control or affect
the meaning or construction of any provision of this Agreement. Any reference to
the Executive in the masculine gender herein is for convenience and is not
intended to express any preference by the Company for executives of any gender.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
___________________________________________
Xxx X. Xxxxxxxxx
Executive
BRAND SERVICES, INC.
By: _______________________________________
Name: Xxxx X. Xxxxxx
Title: Chairman of the Board of Directors
15
